R v Dracos - [2006] QCA 336

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dracos [2006] QCA 336

PARTIES:

R
v
DRACOS, Matthew Sebastian
(applicant)

FILE NO/S:

CA No 101 of 2006
SC No 355 of 2004
SC No 55 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2006

JUDGES:

Jerrard and Holmes JJA and Mullins J
Separate reasons for judgment of each member of the Court, Jerrard and Holmes JJA concurring as to the orders made, Mullins J dissenting

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal against sentence allowed to the extent of ordering the activated suspended period of six months imprisonment be served concurrently with the sentence of seven years imprisonment on the trafficking charge

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant pleaded guilty to one count of unlawfully trafficking in a dangerous drug and one count of unlawfully supplying a dangerous drug to another person – sentenced to seven years imprisonment with a recommendation for consideration for post-prison community-based release after serving two and a half years – sentencing judge further ordered that the applicant serve the whole of a six month period of imprisonment, previously wholly suspended and that this activated sentence be served cumulatively with the seven year sentence – applicant was a drug addict – whether the order that the sentence be served cumulatively with the activated six months sentence was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 147, s 148(1)

R v Chard; ex parte A-G(Qld) [2004] QCA 372; CA No 277 of 2004, 8 October 2004, considered
R v Johansson & McLachlan [2001] QCA 406; (2001) 123 A Crim R 271, considered
R v Le [1996] 2 Qd R 516, considered
R v Pascoe [1997] QCA 284; CA No 184 of 1997, 22 July 1997, considered
R v Skinner; ex parte A-G [1999] QCA 521; [2001] 1 Qd R 322, considered
R v Waters [1998] 2 Qd R 442, cited
R v Watt [1997] QCA 430; CA No 344 of 1997, 29 October 1997, considered

COUNSEL:

The applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 22 March 2006 Mr Dracos pleaded guilty to a charge of carrying on the business of unlawfully trafficking in the dangerous drug heroin between 1 June 2004 and 10 June 2005, and to a second count of unlawfully supplying that drug to another person on 1 February 2005. He was sentenced to seven years imprisonment, and recommended for consideration for post-prison community-based release after he had served two and a half years of that sentence. The learned…

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 Dracos

Details

AGLC: R v Dracos [2006] QCA 336
Case: [2006] QCA 336
Decision Date: 8 September 2006

CaseChat Overview and Summary

The applicant, Dracos, appealed against his sentence, which was imposed following a guilty plea to trafficking in a dangerous drug and supplying a dangerous drug to another person. The sentence consisted of seven years imprisonment with a recommendation for consideration of community-based release after serving two and a half years. Additionally, the sentencing judge ordered that the applicant serve a previously wholly suspended six-month period of imprisonment, which was to be served cumulatively with the seven-year sentence. The applicant, who was a drug addict, argued that the order to serve the six-month sentence cumulatively with the seven-year sentence was manifestly excessive.

The legal issues before the court included whether the order for the six-month sentence to be served cumulatively with the seven-year sentence was manifestly excessive and whether the applicant was entitled to have the sentences served concurrently. The court considered the principles of sentencing and the need to balance the gravity of the offence with the personal circumstances of the applicant. It also examined the impact of the cumulative sentence on the applicant's prospects for rehabilitation and reintegration into society.

The court found that the order for the sentences to be served cumulatively was indeed manifestly excessive. The court emphasised the importance of considering the applicant's personal circumstances, including his status as a drug addict, and the potential for rehabilitation. It noted that the cumulative sentence could significantly impede the applicant's chances of successful reintegration into society and did not align with the sentencing principles of proportionality and rehabilitation. Therefore, the court allowed the appeal and ordered that the six-month sentence be served concurrently with the seven-year sentence.

The court granted leave to appeal against the sentence and allowed the appeal in part, ordering that the activated six-month sentence be served concurrently with the seven-year sentence. This decision reflects the court's commitment to ensuring that sentences are proportionate and conducive to the rehabilitation of offenders, particularly in cases involving drug addiction.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed to the extent of ordering the activated suspended period of six months imprisonment be served concurrently with the sentence of seven years imprisonment on the trafficking charge

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Dracos [2006] QCA 336
PARTIES:	R v DRACOS, Matthew Sebastian (applicant)
FILE NO/S:	CA No 101 of 2006 SC No 355 of 2004 SC No 55 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2006
JUDGES:	Jerrard and Holmes JJA and Mullins J Separate reasons for judgment of each member of the Court, Jerrard and Holmes JJA concurring as to the orders made, Mullins J dissenting
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal against sentence allowed to the extent of ordering the activated suspended period of six months imprisonment be served concurrently with the sentence of seven years imprisonment on the trafficking charge
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – applicant pleaded guilty to one count of unlawfully trafficking in a dangerous drug and one count of unlawfully supplying a dangerous drug to another person – sentenced to seven years imprisonment with a recommendation for consideration for post-prison community-based release after serving two and a half years – sentencing judge further ordered that the applicant serve the whole of a six month period of imprisonment, previously wholly suspended and that this activated sentence be served cumulatively with the seven year sentence – applicant was a drug addict – whether the order that the sentence be served cumulatively with the activated six months sentence was manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 147, s 148(1) R v Chard; ex parte A-G(Qld) [2004] QCA 372; CA No 277 of 2004, 8 October 2004, considered R v Johansson & McLachlan [2001] QCA 406; (2001) 123 A Crim R 271, considered R v Le [1996] 2 Qd R 516, considered R v Pascoe [1997] QCA 284; CA No 184 of 1997, 22 July 1997, considered R v Skinner; ex parte A-G [1999] QCA 521; [2001] 1 Qd R 322, considered R v Waters [1998] 2 Qd R 442, cited R v Watt [1997] QCA 430; CA No 344 of 1997, 29 October 1997, considered
COUNSEL:	The applicant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent