R v Harris - [2018] QCA 7

[2018] QCA 7

COURT OF APPEAL

SOFRONOFF P
MORRISON JA
McMURDO JA

CA No 109 of 2017
DC No 2337 of 2016

THE QUEEN

HARRIS, Nathan John Daniel Applicant

BRISBANE

FRIDAY, 9 FEBRUARY 2018

JUDGMENT

McMURDO JA: On 24 April 2017, the applicant was sentenced for seven drug offences, the most serious of which was one count of trafficking in cannabis. The other offences were the supply of cannabis and possessing items in connection with his trafficking. For the trafficking offence, he was sentenced to five years imprisonment, which was suspended after 20 months with an operational period of five years. He was not further punished for the other offences. He applies for leave to appeal against his sentence upon three grounds. The first is that the sentence was manifestly excessive. The second is that the sentence involved a misapplication of the parity principle. The third ground is that the sentencing judge made an error of fact in finding that the applicants had supplied about 180 pounds of cannabis when he could not have found that the amount was more than 140 pounds.

The applicant’s offending was detected when police intercepted calls between him and a man then under their investigation, a Mr Latter. The telephone calls indicated that the applicant was regularly supplying him and others with cannabis. Those intercepted conversations were summarised in the schedule of facts provided by the prosecutor to the sentencing judge. Within that schedule, there was a statement that the evidence of the intercepted conversations indicated that the applicant had supplied 180 pounds of cannabis at a rate of $3,300 per pound. That meant that the applicant had supplied nearly $600,000 worth of the drug and, at a profit of $100 per pound, made a profit of $18,000.

These conversations were intercepted from 9 March 2015 until 13 May 2015. At that point, police decided to search the applicant’s residence, which they did under a warrant, on 15 May 2015. In the applicant’s bedroom, police located several bags of cannabis amounting to a total of about 24 kilograms. In a wardrobe in his bedroom, they found a locked box, in which there was an amount of $125,400 in cash. They also found vacuum seal machines and vacuum seal packaging and a mobile phone that had the same number as that which they had intercepted. They found other items such as scales and the water pipe. The applicant was then interviewed by police, when he admitted possession of the five scales and cannabis found at his residence, but refused to comment on the purpose of his possession of the cannabis. The indictment was dated 22 November 2016. The period of trafficking which was alleged was that in which the applicant’s telephone calls had been intercepted – that is to say, a period of about 11 weeks.

His case was listed for trial in the District Court in March 2017, and it was not until then that he pleaded guilty. The sentencing judge said that…

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 Harris

Details

AGLC: R v Harris [2018] QCA 7
Case: [2018] QCA 7
Decision Date: 9 FEBRUARY 2018

CaseChat Overview and Summary

In the case of The Queen v Harris, the applicant, Nathan John Daniel Harris, was sentenced to a suspended sentence of imprisonment for a period of five years for trafficking in cannabis. Harris applied for leave to appeal against his sentence on three grounds: that the sentence was manifestly excessive, that the sentencing judge misapplied the parity principle, and that the sentencing judge made an error of fact in finding that the amount of cannabis supplied was 180 pounds rather than 140 pounds. The appeal was heard in the Queensland Court of Appeal. The central legal issues revolved around the appropriateness of the sentence imposed by the District Court, the application of the parity principle in sentencing, and the accuracy of the factual findings made by the sentencing judge.

The Court of Appeal found that the argument that the sentence was manifestly excessive could not be accepted, as it was not supported by reference to comparable cases. The court noted that while the facts and circumstances of the case of Yip, another cannabis trafficker, were not identical to those of Harris, the sentences imposed were not disparate. The court also found that the parity principle did not apply in this case, as the facts and circumstances of Harris's case were not less serious than those of Yip's case. Finally, the court found that the sentencing judge's finding that Harris had supplied 180 pounds of cannabis was not an error of fact that affected the exercise of the sentencing discretion. The submissions by Harris's counsel at the sentencing hearing indicated that the amount of cannabis supplied was of little significance, and the court found that there was no error of fact that affected the sentence.

The Court of Appeal dismissed Harris's application for leave to appeal, finding that there were no grounds for the appeal to succeed. The judges unanimously agreed on the outcome of the appeal, and the order of the court was that the application was refused.

Orders