R v Elizalde

[2006] QCA 330

SUPREME COURT OF QUEENSLAND

CITATION:	R v Elizalde [2006] QCA 330
PARTIES:	R v ELIZALDE, Christos (applicant)
FILE NO/S:	CA No 158 of 2006 SC No 439 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	15 August 2006
JUDGES:	McPherson JA, Dutney and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE - WHEN REFUSED – GENERALLY – where applicant pleaded guilty to one count of trafficking MDMA, methylamphetamine and cocaine and one count of possession of cocaine with a circumstance of aggravation – where summary of intercepted telephone calls involving the applicant put before the sentencing judge without objection by the applicant – whether sentencing judge entitled to make the findings against the applicant based on those telephone calls – where sentencing judge imposed a sentence of nine years imprisonment with no serious violent offender declaration for the trafficking offence and a concurrent term of three years imprisonment for possession – whether sentence was manifestly excessive
Evidence Act 1977 (Qld) s 132C(2), s 132C(3), s 132C(4)
R v Bradforth [2003] QCA 183; CA No 423 of 2002, 9 May 2003, considered R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered R v Rizk [2004] QCA 382; CA No 224 of 2004, 15 October 2004, considered
COUNSEL:	A M West for the applicant M J Copley for the respondent
SOLICITORS:	Dale & Fallu for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: I have read and agree with the reasons of Mullins J for refusing this application for leave to appeal. As her Honour observes, the question in this Court is whether, on the evidence at the sentence hearing, it was open to the primary judge to make the findings that he did about the level of the appellant’s drug trafficking. The issue is essentially one of fact, having regard to the evidence, and it was and is one in which the onus of proof resting on the Crown fell to be discharged on the balance of probabilities taking account of the seriousness of the consequences for the appellant of making an adverse finding: Evidence Act 1977 (Qld), s 132C(4).

2. By force of s 132C(2) of the Act the judge was entitled to act on the statements made by the applicant in the numerous intercepted telephone calls that were either admitted or not challenged at the hearing. The statements by the applicant constituted both admissions by him and original evidence in the form of the res gestae of the trafficking charged against him. In my view, his Honour was justified in acting on those statements…