R v Gair - [2019] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gair [2019] QCA 172

PARTIES:

R
v
GAIR, Matthew Anderson
(applicant)

FILE NO/S:

CA No 114 of 2019
DC No 368 of 2018
DC No 142 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 8 April 2019 (Cash QC DCJ)

DELIVERED ON:

6 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2019

JUDGES:

Morrison and McMurdo JJA and Applegarth J

ORDER:

Application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – DEALING AND DISTRIBUTION OF DRUGS – TRAFFICKING OR SALE AND SUPPLY – where the applicant trafficked in cannabis for about 22 months, at both street level and wholesale quantities – where the applicant had about 21 customers and over the period of trafficking engaged in about 162 transactions – where the trafficking stopped when his house was searched by police and he was given a notice to appear – where the applicant pleaded guilty to a number of counts under the Drugs Misuse Act 1986 (Qld) including trafficking and possession of dangerous drugs – where the sentence imposed on the applicant for the trafficking count was three years’ imprisonment, with a parole release date set at 8 January 2020 after serving nine months – where the sentence imposed on the applicant for the possession of dangerous drugs was twelve months’ imprisonment, to be served concurrently – where it was submitted that the applicant’s efforts towards rehabilitation were such as to call for a lesser period to be served in custody – whether the sentences imposed upon the applicant were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant seeks leave to appeal his sentence – where it is submitted that the learned sentencing judge did not take into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing an offender to remain in the community is preferable – where the applicant contends that the learned sentencing judge did not advert to that principle because his Honour did not refer to it – where it is submitted that resultingly there was an error in the exercise of the sentencing discretion – whether the learned sentencing judge made an error in the exercise of the sentencing discretion

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(ii)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Leathers (2014) 247 A Crim R 137; [2014] QCA 327, cited

COUNSEL:

T Ryan for the applicant
D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: The applicant trafficked in cannabis for about 22 months, at both street level and…

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 Gair

Details

AGLC: R v Gair [2019] QCA 172
Case: [2019] QCA 172
Decision Date: 6 September 2019

CaseChat Overview and Summary

The applicant, who had been trafficking in cannabis for about 22 months, appealed against his sentence on the grounds that it was manifestly excessive. The applicant had been involved in about 162 transactions with 21 customers, at both street level and wholesale quantities, before his house was searched by police and he was given a notice to appear. He pleaded guilty to a number of counts under the Drugs Misuse Act 1986 (Qld) including trafficking and possession of dangerous drugs. The sentence imposed on the applicant for the trafficking count was three years’ imprisonment, with a parole release date set at 8 January 2020 after serving nine months. The sentence imposed on the applicant for the possession of dangerous drugs was twelve months’ imprisonment, to be served concurrently. The applicant submitted that his efforts towards rehabilitation were such as to call for a lesser period to be served in custody.

The legal issue before the court was whether the sentences imposed upon the applicant were manifestly excessive. The court also considered whether the learned sentencing judge made an error in the exercise of the sentencing discretion by not taking into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing an offender to remain in the community is preferable. The applicant contended that the learned sentencing judge did not advert to that principle because his Honour did not refer to it, resulting in an error in the exercise of the sentencing discretion.

The court held that the sentences imposed on the applicant were not manifestly excessive. The court also held that the learned sentencing judge did not make an error in the exercise of the sentencing discretion by not taking into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing an offender to remain in the community is preferable. The court held that the learned sentencing judge had adverted to that principle and had taken it into account. The application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal is refused.

Background

Background to the litigation

The applicant later attended a police station but declined to participate in an interview.Additional facts admitted without objection At the sentencing hearing the defence supplied facts without objection. They included: (i) a Court Report from QMERIT;[2] (ii) letters relating to the applicant’s work experience and volunteer work with the State Emergency Service;[3] (iii) a character reference;[4] (iv) a letter from the applicant’s mother detailing the medical conditions suffered by the applicant from the time of his birth;[5] and a number of medical history records.[6][2]AB 59.[3]AB 64-65.[4]AB 66.[5]AB 67.[6]AB 69-98. The QMERIT reports revealed that the applicant had been enrolled for 16 weeks in their programme, starting on 23 November 2017. He attended 10 weekly counselling sessions, and had undergone 17 random drug-screening tests, none of which showed any illicit substances in his system. It detailed his background. His parents divorced when he was a child but his mother remarried and he had a good upbringing. He left to move back with his father when he was 13, but left again when he was 16. He then started using cannabis. When he was 18 he moved to be close to and assist his mother. Two years later he moved to the Sunshine Coast and commenced work. In 2014 he had his first epileptic seizure, and that condition forced him out of work. The applicant’s cannabis use started when he was about 16 and he had used cannabis consistently since.[7] His use increased to 15-20 cones a day prior to commencing the QMERIT programme.[7]Except for a few periods of abstinence. The applicant had serious health issues (some from childhood), including decreased lung function, epilepsy,[8] ulcerative colitis,[9] asthma and obesity. During the QMERIT programme he had been admitted to hospital for respiratory failure related to his lung condition, sleep apnoea, obesity and hyperventilation.[8]Diagnosed in 2014.[9]He underwent surgery for this in 2015. The letter from the applicant’s mother detailed his medical conditions in childhood. They included measles leading to pneumonia and collapse of the lungs, and several admissions to drain fluid from his lungs. The medical records revealed that the applicant suffered from ongoing issues. These included: ongoing epileptic seizures, occasional asthma, sleep apnoea requiring use of a CPAP machine, and lung issues from the damage when he was a child. The epileptic seizures were described as occurring in the morning, each lasting for a few seconds but over an hour, during which time the applicant did not lose consciousness. All those issues were successfully managed with various forms of medication. He was admitted to hospital for respiratory failure in November 2018, and had surgery in December 2018 to fix the ulcerative colitis (inflammatory bowel disease). The applicant worked as a fibreglass moulder until he ceased employment due to the epileptic seizures in 2014. At that time he was married, and had a small child. He was still recovering then from surgery for bowel cancer, which had left him with a cancer bowel-bag around his waist. His cannabis use increased and became his source of income apart from Centrelink payments. The bag around his waist was finally removed in the operation done in December 2018.

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 Gair [2019] QCA 172
PARTIES:	R v GAIR, Matthew Anderson (applicant)
FILE NO/S:	CA No 114 of 2019 DC No 368 of 2018 DC No 142 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore – Date of Sentence: 8 April 2019 (Cash QC DCJ)
DELIVERED ON:	6 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2019
JUDGES:	Morrison and McMurdo JJA and Applegarth J
ORDER:	Application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – DEALING AND DISTRIBUTION OF DRUGS – TRAFFICKING OR SALE AND SUPPLY – where the applicant trafficked in cannabis for about 22 months, at both street level and wholesale quantities – where the applicant had about 21 customers and over the period of trafficking engaged in about 162 transactions – where the trafficking stopped when his house was searched by police and he was given a notice to appear – where the applicant pleaded guilty to a number of counts under the Drugs Misuse Act 1986 (Qld) including trafficking and possession of dangerous drugs – where the sentence imposed on the applicant for the trafficking count was three years’ imprisonment, with a parole release date set at 8 January 2020 after serving nine months – where the sentence imposed on the applicant for the possession of dangerous drugs was twelve months’ imprisonment, to be served concurrently – where it was submitted that the applicant’s efforts towards rehabilitation were such as to call for a lesser period to be served in custody – whether the sentences imposed upon the applicant were manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant seeks leave to appeal his sentence – where it is submitted that the learned sentencing judge did not take into account the principle in s 9(2)(a)(ii) of the Penalties and Sentences Act 1992 (Qld) that a sentence allowing an offender to remain in the community is preferable – where the applicant contends that the learned sentencing judge did not advert to that principle because his Honour did not refer to it – where it is submitted that resultingly there was an error in the exercise of the sentencing discretion – whether the learned sentencing judge made an error in the exercise of the sentencing discretion Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(ii) Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Leathers (2014) 247 A Crim R 137; [2014] QCA 327, cited
COUNSEL:	T Ryan for the applicant D Balic for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent