R v Gaerlan - [2014] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gaerlan [2014] QCA 145

PARTIES:

R
v
GAERLAN, Jason Damien
(applicant)

FILE NO/S:

CA No 112 of 2014
SC No 89 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

19 June 2014

DELIVERED AT:

Townsville

HEARING DATE:

19 June 2014

JUDGES:

Margaret McMurdo P and Gotterson JA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     Extend time for filing and serving the application for leave to appeal against sentence to 12 May 2014.

2.     Grant leave to appeal against sentence.

3.     Grant leave to adduce further evidence on appeal by way of the affidavit of Mr Robert Zemaitis and the affidavit of the applicant, both filed on 22 May 2014.

4.     Allow the appeal.

5.     Set aside the sentence of Count 1 and substitute a term of imprisonment of five years suspended after serving 596 days for an operational period of five years.

6. Set aside the sentence of Count 2 and instead order that the applicant be placed on three years probation on the terms and conditions set out in s 93 of the Penalties and Sentences Act 1992 (Queensland), and that he report to the Townsville Office of Probation and Parole by 4 pm 20 June 2014, with a further condition that the applicant submit to such medical, psychiatric or psychological treatment or counselling as directed by an authorised corrective services officer.

7.     Otherwise confirm the sentence under appeal.

8.     Direct the registrar to forward a copy of Mr Robert Zemaitis’ report to the relevant authorities.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE – where the applicant was convicted on pleas of guilty to one count of trafficking in a dangerous drug (methylamphetamine) and a second count of possession of methylamphetamine – where the applicant was sentenced to six years imprisonment with a parole eligibility date of 1 November 2014 – where the applicant was also convicted of other drug offences with convictions recorded but no further punishment imposed – where the applicant submits that a factor relevant to sentencing of which evidence is now available was not placed before the learned sentencing judge or taken into account – where his Honour was informed during submissions that from 2002 until 2008 the applicant had served in the Australian Army, stationed in Townsville and serving a tour of duty in Iraq and East Timor – where new evidence consists of an affidavit of a pyschologist to which is attached a report assessing the applicant’s psychological state – where the psychologist is of the opinion that the applicant at the time of the offending was suffering from a post-traumatic stress disorder chronic and that he continues to suffer from it – where this condition is a consequence of exposure…

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 Gaerlan

Details

AGLC: R v Gaerlan [2014] QCA 145
Case: [2014] QCA 145
Decision Date: 19 June 2014

CaseChat Overview and Summary

The appeal before the court involved a conviction for trafficking in a dangerous drug and possession of the same substance, with the appellant sentenced to six years imprisonment. The appellant sought an extension of time to file and serve his application for leave to appeal against his sentence, and to adduce further evidence in relation to his sentence. This evidence included an affidavit from a psychologist, who assessed that the appellant had been suffering from post-traumatic stress disorder at the time of his offending, a condition that arose from his military service overseas. The court needed to determine whether to grant the extension of time, admit the new evidence, and allow the appeal against the sentence.

The court considered the appellant's arguments and the new evidence presented. It noted the importance of taking into account all relevant factors at the time of sentencing, particularly those that might mitigate the severity of the sentence. The court found that the new evidence was relevant and significant, and that it was not available at the time of the original sentencing hearing. It concluded that the appellant's post-traumatic stress disorder was a relevant factor that should have been considered by the sentencing judge, and that it provided a compelling reason to reduce the severity of the sentence. The court also found that the extension of time was justified in the circumstances, and that the appellant had made out a prima facie case for leave to appeal.

The appeal was allowed, and the original sentence was set aside and replaced with a more lenient sentence. The appellant was sentenced to five years imprisonment, suspended after serving 596 days, for the count of trafficking in a dangerous drug. For the count of possession, the appellant was placed on three years probation, with conditions that he report to the Townsville Office of Probation and Parole and submit to medical, psychiatric or psychological treatment as directed by an authorised corrective services officer. The court directed the registrar to forward a copy of the psychologist's report to the relevant authorities.

Orders

Orders of the court

1. Extend time for filing and serving the application for leave to appeal against sentence to 12 May 2014.

2. Grant leave to appeal against sentence.

3. Grant leave to adduce further evidence on appeal by way of the affidavit of Mr Robert Zemaitis and the affidavit of the applicant, both filed on 22 May 2014.

4. Allow the appeal.

5. Set aside the sentence of Count 1 and substitute a term of imprisonment of five years suspended after serving 596 days for an operational period of five years.

6. Set aside the sentence of Count 2 and instead order that the applicant be placed on three years probation on the terms and conditions set out in s 93 of the Penalties and Sentences Act 1992 (Queensland), and that he report to the Townsville Office of Probation and Parole by 4 pm 20 June 2014, with a further condition that the applicant submit to such medical, psychiatric or psychological treatment or counselling as directed by an authorised corrective services officer.

7. Otherwise confirm the sentence under appeal.

8. Direct the registrar to forward a copy of Mr Robert Zemaitis’ report to the relevant authorities.

Background

Background to the litigation

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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 Gaerlan [2014] QCA 145
PARTIES:	R v GAERLAN, Jason Damien (applicant)
FILE NO/S:	CA No 112 of 2014 SC No 89 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED EX TEMPORE ON:	19 June 2014
DELIVERED AT:	Townsville
HEARING DATE:	19 June 2014
JUDGES:	Margaret McMurdo P and Gotterson JA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Extend time for filing and serving the application for leave to appeal against sentence to 12 May 2014. 2. Grant leave to appeal against sentence. 3. Grant leave to adduce further evidence on appeal by way of the affidavit of Mr Robert Zemaitis and the affidavit of the applicant, both filed on 22 May 2014. 4. Allow the appeal. 5. Set aside the sentence of Count 1 and substitute a term of imprisonment of five years suspended after serving 596 days for an operational period of five years. 6. Set aside the sentence of Count 2 and instead order that the applicant be placed on three years probation on the terms and conditions set out in s 93 of the Penalties and Sentences Act 1992 (Queensland), and that he report to the Townsville Office of Probation and Parole by 4 pm 20 June 2014, with a further condition that the applicant submit to such medical, psychiatric or psychological treatment or counselling as directed by an authorised corrective services officer. 7. Otherwise confirm the sentence under appeal. 8. Direct the registrar to forward a copy of Mr Robert Zemaitis’ report to the relevant authorities.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE – where the applicant was convicted on pleas of guilty to one count of trafficking in a dangerous drug (methylamphetamine) and a second count of possession of methylamphetamine – where the applicant was sentenced to six years imprisonment with a parole eligibility date of 1 November 2014 – where the applicant was also convicted of other drug offences with convictions recorded but no further punishment imposed – where the applicant submits that a factor relevant to sentencing of which evidence is now available was not placed before the learned sentencing judge or taken into account – where his Honour was informed during submissions that from 2002 until 2008 the applicant had served in the Australian Army, stationed in Townsville and serving a tour of duty in Iraq and East Timor – where new evidence consists of an affidavit of a pyschologist to which is attached a report assessing the applicant’s psychological state – where the psychologist is of the opinion that the applicant at the time of the offending was suffering from a post-traumatic stress disorder chronic and that he continues to suffer from it – where this condition is a consequence of exposure…