R v Harrison - [2018] QCA 94

[2018] QCA 94

COURT OF APPEAL

FRASER JA
GOTTERSON JA
ATKINSON J

CA No 53 of 2018
SC No 1561 of 2017

THE QUEEN

HARRISON, Justin Douglas Dean Applicant

BRISBANE

WEDNESDAY, 23 MAY 2018

JUDGMENT

FRASER JA: The applicant was convicted on his plea of guilty of possession of a dangerous drug, methylamphetamine, in excess of two grams. He seeks leave to appeal against the sentence imposed upon him of 18 months imprisonment with a parole release date fixed after six months. The grounds of the application are that the sentence was manifestly excessive and that the sentencing judge placed too great an emphasis on personal deterrence.

Police intercepted the applicant driving from an address known to police. The applicant gave the obviously false explanation that he was in the area because he had picked up a muffler; there was no muffler in the car. The applicant appeared nervous and was fidgeting. Upon a search of the applicant and his car, police found a clipseal bag in the applicant’s chest pocket containing four grams of substance, of which 2.6 grams was pure methylamphetamine – a purity of 66.5 per cent. Police also found drug paraphernalia in an Esky, but that is not relevant for present purposes.

When police asked the applicant about the drug and paraphernalia, he offered the obviously false explanation that he did not know they were in his possession. He was arrested and declined to participate in a police interview. The value of the drug was between about $1,300 and $2,600 upon an assumption that a gram was sold for between $500 and $1,000, or between about $1,300 and $2,900 if sold in 0.1 gram amounts for being $50 and $150. The prosecution did not contend that there was a commercial purpose associated with the applicant’s possession and the sentencing judge proceeded upon the conclusion that the drug was intended for the applicant’s own use.

In relation to the second ground of appeal, the sentencing remarks explain why the sentencing judge regarded personal deterrence as a relevant sentencing factor. The applicant had been punished by fines and, on one occasion, by a sentence of 18 months probation for drug offences on seven occasions between 2009 and 2016. A probation report tendered at the sentence hearing expressed views that the applicant would benefit from interventions in the areas of substance abuse and social support. Although he engaged well in two counselling sessions in early 2015, he continued to use substances and report that his use increased when he experienced stress.

Following positive results to cannabis, methylamphetamine and amphetamine in urinalysis after August 2014, the applicant returned a clear result on 6 March 2015 and reported a brief period of abstinence from substance use in early to mid - 2015, but he subsequently returned to regular substance use. The report states that when the applicant was challenged about his substance use he appeared unmotivated to address it and acted in a blasé manner about it. Later in 2014…

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 Harrison

Details

AGLC: R v Harrison [2018] QCA 94
Case: [2018] QCA 94
Decision Date: 23 MAY 2018

CaseChat Overview and Summary

In the case of The Queen v Harrison, the applicant, Justin Douglas Dean Harrison, sought leave to appeal against his sentence of 18 months imprisonment for possession of methylamphetamine exceeding two grams. Harrison pleaded guilty to the offence and argued that the sentence was manifestly excessive and that the sentencing judge overemphasised personal deterrence. The appeal was heard in the Queensland Court of Appeal. The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge placed too much emphasis on personal deterrence. The court found that the sentence was not manifestly excessive and that it was appropriate for the sentencing judge to place some weight on personal deterrence. The court noted that Harrison had a history of drug-related offences and had not shown sufficient evidence of rehabilitation efforts. The court also found that the sentence was justified by considerations of deterrence and denunciation. Therefore, the appeal was dismissed and the original sentence was upheld. The court did note a clerical error in the endorsement on the indictment and the verdict and judgment record, which was to be rectified.

Orders