R v Irving - [2002] QCA 186

[2002] QCA 186

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
ATKINSON J

CA No 281 of 2001

THE QUEEN

TERRY IRVING Appellant

BRISBANE

..DATE 31/05/2002

JUDGMENT

MACKENZIE J: The appellant was convicted of possession of heroin exceeding two grams and possession of cannabis sativa. He appealed against conviction and sentence. At the outset the ground that the verdict was unsafe and unsatisfactory was abandoned.

The drugs were found during a police search of a room at the Townsville Casino that he shared with a woman named Sorrensen and a man named Luhrman. When the warrant was executed the appellant was not present, but he arrived while the search was being conducted. The police found the drugs in a suitcase which contained personal items belonging to the appellant.

The Crown relied, in the alternative, on actual possession of the drugs found in the bag or guilt by virtue of section 57C of the Drugs Misuse Act as occupier of the room. Special verdicts were obtained as to the basis of the conviction. In each instance the jury found actual possession.

With respect to the second ground of appeal against conviction, the thrust of it was that the failure to call Luhrman to give evidence, so that he was available for cross-examination as to certain matters which the appellant thought might be favourable to him, was relied on as a substantial miscarriage of justice.

However, as the argument developed on that ground, and issues were raised as to whether the ground of appeal really involved an allegation of incompetence of his legal advisers, Mr O'Gorman advised the Court that, in the event that it was thought necessary to adjourn the hearing for the purpose of obtaining material appropriate to such an application, he had express written instructions to abandon that ground of appeal as well and, on being advised by the Court that the Court was of a view that would otherwise necessitate an adjournment, he indicated to the Court that in compliance with his instructions he abandoned the second ground of appeal against conviction as well. The appeal against conviction therefore should be dismissed.

With regard to the application for leave to appeal against sentence, it was submitted that the sentence of three years' imprisonment for the heroin count was manifestly excessive. The offence was possession of heroin with a circumstance of aggravation that the quantity exceeded two grams. The quantity was 2.446 in five packets of 65 to 69 per cent purity.

The applicant was sentenced on the footing that there was a commercial purpose in his possession of the drug and on the basis that the quantity was not insignificant although not as large as sometimes found. It was accepted that there may also have been some element of experimentation with heroin on his part since he had only one prior conviction for possession of cannabis.

It was said that the conclusion that there was a commercial purpose was strengthened by the surrounding circumstances, that is to say…

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.

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Details

Case: [2002] QCA 186
Decision Date: 31 May 2002

CaseChat Overview and Summary

Terry Irving appealed against his conviction and sentence for possession of heroin exceeding two grams and possession of cannabis sativa. The drugs were discovered during a police search of a room he shared with others at the Townsville Casino. The police executed the warrant while Irving was absent, but he arrived during the search. The drugs were found in a suitcase containing his personal items. The Crown argued for conviction based on actual possession or as the occupier of the room under section 57C of the Drugs Misuse Act. The jury found Irving guilty of actual possession. The appeal against conviction was dismissed as the grounds were abandoned. Regarding the appeal against sentence, Irving argued that the three-year imprisonment term for the heroin possession was excessively high. The sentencing judge considered a commercial purpose in Irving's possession of the drug, based on the surrounding circumstances and the activities of his associates. Although the appeal against sentence was dismissed, the judges acknowledged that the sentence was at the higher end of the range for similar offences.

The court held that the sentencing judge could properly conclude there was a commercial purpose in Irving's possession of the drug, and that a three-year sentence was not uncommon for this level of commercial possession. The court rejected the argument that the sentence was manifestly excessive, as it was within the range of sentences supported by Court of Appeal decisions for possession of quantities exceeding two grams. The appeal against conviction and sentence was dismissed.

Orders