R v Everett - [1999] QCA 14

99.14

COURT OF APPEAL
de JERSEY CJ
McMURDO P

McPHERSON JA

CA No 311 of 1998
THE QUEEN
v.

JIMMY EVERETT

Applicant

BRISBANE
..DATE 05/02/99
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THE CHIEF JUSTICE: The applicant, Mr Everett, was sentenced
to nine years imprisonment for carrying on the business of
trafficking in methylamphetamines with a recommendation that
he be eligible for parole after serving three and a half
years.

He was sentenced to concurrent terms for possession of dangerous drugs, possession of tainted property and things used in connection with drug crime and for attempting to enter premises with intent to commit an indictable offence. He submits that the sentence imposed on him is manifestly excessive.

In his written submission to the Court he has urged that the sentence should have been in the range of five to seven years imprisonment with parole after two to two and a half years.

The sentencing Judge said that he regarded the trafficking offence as the top of the range and that it might have warranted imprisonment of up to 11 years, but he said he was guided by the Crown's suggestion of a seven to nine year range. He selected nine years and then allowed what he considered a substantial reduction in terms of recommending early parole to take account of the applicant's co-operation with the authorities as well and his pleas of guilty.

When sentenced the applicant was 33 years of age. He was
sentenced last year. He had a prior criminal history
accumulated in the late 80's for attempting to procure murder,
armed robbery in company, breaking and entering offences and
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receiving. He was then imprisoned for six years. He
committed the instant offences four years after his release
from prison.

It really suffices to focus for the moment on the trafficking count. He carried on the business of selling methylamphetamines for the six months period prior to his arrest. The Crown relied on 31 particularised acts of supply for a price exceeding $53,000, including five supplies to two police operatives involving a total of 28.167 grams of the drug included in 89.445 grams of powder for $13,800, two supplies to customers monitored by the police and 24 separate transactions on credit to various customers recorded in the applicant's note book. The prices involved in those sales totalled $39,290.

The applicant also admitted dealing for cash payment. Those transactions were not recorded and he did not quantify the size of that part of his trade. During his interview with the police customers continued to seek him out through his mobile telephone. He told the police that his drug business returned about $2,000 a week, although during the sentencing process his counsel described that admission as a bravado throwaway line at the end of a very long interview process which was not consistent with reality. The applicant, one should observe, was not a user. His motivation in all of this was purely commercial.

The Crown referred us to Chan,…

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 Everett

Details

AGLC: R v Everett [1999] QCA 14
Case: [1999] QCA 14
Decision Date: 5/02/1999

CaseChat Overview and Summary

In the case of R v Everett, the applicant, Jimmy Everett, appealed against his sentence of nine years imprisonment for trafficking in methylamphetamines, which was accompanied by a recommendation for parole eligibility after three and a half years. Everett argued that the sentence was manifestly excessive, suggesting a range of five to seven years imprisonment with parole eligibility after two to two and a half years. The sentencing judge considered the trafficking offence to be at the top of the sentencing range, potentially warranting up to 11 years imprisonment, but selected nine years, influenced by the Crown's suggestion of a seven to nine year range. The judge also took into account Everett's cooperation with authorities and his guilty pleas, which led to the recommendation for early parole.

The legal issues before the court involved determining the appropriate sentence for the trafficking offence and whether the sentence imposed was excessive. The court needed to consider the severity of the offence, Everett's prior criminal history, and the factors that justified a reduction in the sentence, such as his cooperation and guilty pleas. The court also had to assess the cumulative effect of Everett's other concurrent sentences, including those for possession of dangerous drugs, possession of tainted property, things used in connection with drug crime, and attempting to enter premises with intent to commit an indictable offence.

The court found that Everett's conduct, characterized by a purely commercial motivation and carried out by a man with a substantial prior criminal history, warranted a head term within the range of eight to 10 years. The court considered the one-year credit for parole eligibility to be appropriate given Everett's cooperation and guilty pleas. Regarding the offence of attempting to enter premises with intent, the court noted that it was a serious offence committed separately from the trafficking offences. The court concluded that the overall punishment meted out to Everett was within reasonable bounds, and thus, the application for appeal was refused.

Orders