R v George - [2001] QCA 135

[2001] QCA 135

COURT OF APPEAL

McPHERSON JA
WHITE J
DUTNEY J

CA No 339 of 2000

THE QUEEN

LEO MICHAEL GEORGE Applicant

BRISBANE

..DATE 06/04/2001

JUDGMENT

WHITE J: The applicant for leave to appeal against sentence pleaded guilty on 22 November 2000 to one count of trafficking in dangerous drugs, six counts of supply of dangerous drugs, one count of possession of dangerous drugs, two counts of possession of dangerous drugs each with a circumstance of aggravation, and one count of possession of a mobile phone used in connection with the crime of drug trafficking.

The applicant was sentenced to 14 years imprisonment in respect of the drug trafficking charge. Although convictions were recorded no further penalty was imposed with respect to the other charges.

The offences were committed between 31 March 1998 and 17 December 1998. The applicant was aged 51 at sentence and 49 during the year of the offences. He had previous convictions for drug offences for which he had served short terms of imprisonment in New South Wales or had received a fine. The convictions related to heroin, cocaine and cannabis.

The applicant supplied both heroin and cocaine to an undercover police officer who had taped their conversations. The applicant sold over four transactions which were set out in the indictment, 251.36 grams of powder containing 178.511 grams of pure heroin and 131.196 grams of powder containing 84.530 grams of cocaine.

$23,500 was paid to the undercover police officer together with $40,000 which was paid on 16 December 1998 which was the last sale so that the $40,000 was recovered.

A bag owned by the applicant had been intercepted at the airport search and a small trace removed of white powder on 19 June 1998 which was shown to be cocaine.

A complicating factor was that the applicant was being dealt with or had been dealt with in New South Wales for drugs. He was the subject of a National Crime Authority investigation. Unfortunately, the reference to the New South Wales proceedings was rather vague in the prosecutor's statement to the Court. I will quote briefly from what the prosecutor had to say appearing at pages 6 and 7 of the record:

"At one point the prisoner tells the undercover agent that he was making about $100,000 a year from the sale of these drugs. Now, it may be said that that was perhaps a little bit of bravado on his part that he was saying these things but there was an order in the New South Wales Supreme Court where the New South Wales Crime Commission obtained an order for $300,000 being the amount of moneys derived by this prisoner for the six years before 24 December 1998."

The prosecutor went on to say that the Crown was going to rely on that order to the extent that while the prisoner was to some extent a resident of New South Wales he had a house here in Toowong and that he had paid…

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 George

Details

AGLC: R v George [2001] QCA 135
Case: [2001] QCA 135
Decision Date: 06/04/2001

CaseChat Overview and Summary

In the case of the Queen versus Leo Michael George, the applicant sought leave to appeal against his sentence after pleading guilty to multiple drug-related charges, including trafficking, supply, and possession of dangerous drugs. The matter was heard in the Court of Appeal in Queensland. The applicant argued that the sentence imposed was excessive and that the trial judge had made errors in considering certain factors during sentencing.

The primary legal issue was whether the sentence imposed by the trial judge was manifestly excessive and whether there were any errors in the consideration of sentencing factors. The Court examined whether the trial judge erred in relying on factors related to the applicant's drug trafficking activities in New South Wales, and whether there was an error in the use of an alleged $100,000 annual income from drug dealing. Furthermore, the Court assessed whether the trial judge appropriately considered the two-year delay between the completion of the drug trafficking offence and the imposition of the sentence.

The Court found that there was no error in the trial judge's consideration of the applicant's drug trafficking activities in New South Wales, as the applicant had not been dealt with for trafficking in that jurisdiction at the time of sentencing. Additionally, the Court held that the trial judge made proper reference to the state of the evidence when discussing the applicant's alleged $100,000 annual income from drug dealing. In terms of the two-year delay, the Court found that the delay was not attributable to the prosecution or the applicant and did not warrant particular weight in the sentencing process. Finally, the Court concluded that the sentence imposed was not manifestly excessive, taking into account the significant previous criminal history of the applicant.

The Court of Appeal, comprising McPherson JA, White J, and Dutney J, dismissed the applicant's application for leave to appeal against the sentence. The judges agreed that the sentence imposed was not manifestly excessive and that there were no errors in the trial judge's consideration of the relevant sentencing factors. Consequently, the application for leave to appeal against sentence was dismissed.

Orders