R v Donaci - [2018] QCA 226

[2018] QCA 226

COURT OF APPEAL

SOFRONOFF P
PHILIPPIDES JA
HENRY J

CA No 150 of 2018
SC No 1488 of 2017

THE QUEEN

DONACI, Robert Frank Applicant

BRISBANE

THURSDAY, 20 SEPTEMBER 2018

JUDGMENT

HENRY J: The applicant was intercepted by police when driving with his young son. A search of the vehicle’s boot discovered ecstasy weighing 4.015 grams gross and 2.726 grams pure and methylamphetamine weighing .058 grams gross. The ecstasy was hidden in the CD stacker, and the methylamphetamine was in a bag stored under the spare tyre. The applicant was also found to have $4,200 in his pocket, but that was returned to him by police.

He was charged, committed for trial and in due course pleaded guilty to one count of possession of ecstasy in excess of two grams and one count of possession of methylamphetamine simpliciter.

He was sentenced on the first count to 18 months imprisonment with immediate parole release. On the second count he was ordered to perform 50 hours community service.

He applies for leave to appeal his sentence on the ground it was manifestly excessive. His application implicitly relates to the sentences on both counts.

There is no substance to the application.

The applicant’s best point is that he was sentenced on the basis he possessed the drugs for his personal use. On that topic the prosecution acknowledged that while the amount, and 67.9 per cent purity, of the substance containing the ecstasy was concerning there were insufficient other circumstances to contend for an inference of commerciality. Defence counsel explained the applicant had acquired the ecstasy preparatory to a New Year’s Eve celebration and that the methylamphetamine was “mere residue” he had forgotten about.

As an isolated consideration, possession of unlawful drugs for a commercial purpose is inherently more serious than possession for personal use. However, the motivation behind an offender’s possession of unlawful drugs is not the only relevant sentencing consideration. The quantity of the drug and the question of whether an offender is drug dependent are each relevant, indeed, they affect the maximum penalty. Here the applicant was not said to be drug dependent and the amount of ecstasy exceeded the statutory aggravating weight of two grams, thus lifting the maximum penalty from 15 to 25 years imprisonment – see s 9 Drugs Misuse Act 1986 (Qld).

An offender’s antecedents is also relevant. All things being equal, a youthful first offender will ordinarily be sentenced more leniently than a more mature offender with previous convictions. The applicant is in the latter category. He was 36 years old when he offended and has a criminal history. It includes convictions for various offences committed when he was a young adult, including trafficking and possessing ecstasy in Victoria in 2003, for which he received four months imprisonment to be served as an intensive correction order. More recently it includes weapons offences in Victoria in 2016 and possessing dangerous drugs in Queensland in 2016, less than a month before the present offending.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Donaci

Details

AGLC: R v Donaci [2018] QCA 226
Case: [2018] QCA 226
Decision Date: 20 SEPTEMBER 2018

CaseChat Overview and Summary

In the case of R v Donaci, the applicant was found in possession of ecstasy and methylamphetamine, leading to his conviction and subsequent sentencing. He was sentenced to 18 months imprisonment with immediate parole release for the possession of ecstasy in excess of two grams and 50 hours of community service for the possession of methylamphetamine. The applicant appealed against his sentence on the ground that it was manifestly excessive. The appeal was heard in the Court of Appeal.

The primary legal issue before the Court was whether the applicant's sentence was manifestly excessive. The applicant argued that the sentence was excessive because it was based on the assumption that he possessed the drugs for commercial purposes, a contention that was rejected by the prosecution. The Court needed to determine if the sentence imposed was within the bounds of judicial discretion.

The Court dismissed the appeal, finding that the applicant's sentence was not manifestly excessive. The Court found that the applicant's criminal history, including previous convictions for drug-related offences, supported a sentence involving a term of imprisonment. The Court also noted that the applicant's defence counsel had not objected to a sentence of two years imprisonment with immediate parole, which further undermined the applicant's argument that the sentence was excessive. The Court concluded that the sentence imposed was within the range of sentencing options available to the trial judge, and the applicant's application for leave to appeal was dismissed.

The Court ordered that the application for leave to appeal against the sentence was refused.

Orders