R v Evans - [1998] QCA 73

IN THE COURT OF APPEAL	[1998] QCA 073
SUPREME COURT OF QUEENSLAND

C.A. No. 487 of 1997

Brisbane

[R. v. Evans]

THE QUEEN

GLEN ROBERT EVANS

(Applicant) Appellant
Davies J.A. Pincus J.A. Ambrose J.

Judgment delivered 28 April 1998

Joint reasons for judgment of Davies J.A. and Ambrose J.; separate reasons of Pincus J.A. dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - Appeal against conviction and sentence - trafficking in and possession of heroin - appellant a heroin addict - appellant with serious health problem - whether possible to determine the scale of the appellant's dealing - whether an addict less culpable than a person selling heroin purely to enrich himself - relevance of sentence imposed on another trafficker to whom the appellant supplied heroin.
Runcan (1993) 70 A.Crim.R. 222 Legradi (C.A. No. 469 of 1993, 4 March 1994) R. v. Le [1996] 2 Qd.R. 516
Counsel:	Mr. A. J. Rafter for the applicant/appellant Mr. M. C. Chowdhury for the respondent
Solicitors:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	20 April 1998

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND AMBROSE J.

Judgment delivered 28 April 1998

The appellant was convicted after a trial in the Supreme Court on 1 December 1997 on one count of trafficking in heroin and one of possession of heroin. He was sentenced to 12 years imprisonment with a recommendation that he be eligible for parole after serving four years of that term. He has appealed against his conviction and sought leave to appeal against sentence.

The trafficking of which he was convicted was between 1 July 1994 and 14 February 1996. He was convicted principally on the evidence of another trafficker, Suzanne Kapper, who swore that it was the appellant who supplied her with the heroin in which she trafficked. She had pleaded guilty to that offence and had been sentenced on 2 April 1996.

Kapper gave evidence that, in the latter part of 1994 the appellant commenced to supply her with the heroin in which she thereafter trafficked. The heroin was exchanged for money by each being left at designated drop-off points on a daily or twice daily basis. The exchange was in four gram lots for $800 a gram; that is $3,200 per four gram lot or $6,400 or $3,200 per day depending on whether this occurred daily or twice daily. This continued seven days a week, over the period to which we have referred except for a period of about two or three weeks in December 1994 when Ms. Kapper was in hospital recovering from a motor vehicle accident, during which time she continued to purchase but in smaller lots, and, arguably, some periods in 1995 when, due to some problems with the appellant's heart, his friend Ms. Mackiewcz dealt directly with Ms. Kapper.

The appellant's appeal against conviction was on eight grounds. The first of them was that the…

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 Evans

Details

AGLC: R v Evans [1998] QCA 73
Case: [1998] QCA 73
Decision Date: 28/04/1998

CaseChat Overview and Summary

The appellant was convicted of trafficking in and possessing heroin. The appeal was against both conviction and sentence. The court heard that the appellant had a serious health problem and was a heroin addict. The primary issue was whether it was possible to determine the scale of the appellant's dealing in heroin. Additionally, the court examined whether an addict could be considered less culpable than a person selling heroin purely for enrichment. The relevance of the sentence imposed on another trafficker, to whom the appellant supplied heroin, was also considered.

The court first assessed the evidence to determine the scale of the appellant's dealing in heroin. It was noted that the appellant's addiction might have influenced the amount of heroin he possessed and trafficked. However, the court found that there was sufficient evidence to establish the appellant's role in the drug trade. The court also considered whether the appellant's status as a heroin addict should reduce his culpability. The court concluded that addiction, while a mitigating factor, did not absolve the appellant of criminal responsibility for his actions. The relevance of the sentence imposed on another trafficker was deemed to be of limited assistance in determining the appropriate sentence for the appellant.

The appeal was dismissed. The court upheld the conviction and sentence, finding that the evidence was sufficient to establish the appellant's involvement in the drug trade. The court acknowledged the appellant's health issues but emphasised that addiction did not negate criminal responsibility. The final orders of the court were to uphold the conviction and sentence as determined by the lower court.

Orders