R v Jacobs - [1997] QCA 114

IN THE COURT OF APPEAL	[1997] QCA 114
SUPREME COURT OF QUEENSLAND

C.A. No. 523 of 1996 C.A. No. 444 of 1996

Brisbane

[R. v Jacobs]

THE QUEEN

RAYMOND MARK JACOBS

(Applicant)

Appellant

McPherson JA
Ambrose J
White J

Judgment delivered 9 May 1997

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPLICATION TO EXTEND TIME WITHIN WHICH TO APPEAL AGAINST
CONVICTION REFUSED
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCES REFUSED

CATCHWORDS:DRUGS MISUSE ACT 1987 S.5(1) - indictment - count alleging business of trafficking in more than one dangerous drug - no distinction between 1st and 2nd schedule drugs - whether form of indictment bad for duplicity - Walsh v Tattersall (1996) 70 ALJR 884 - "continuing offence".

Counsel:	Mr P Feeney for the applicant/appellant Mr D Bullock for the respondent
Solicitors:	Price and Roobottom for the applicant/appellant Queensland Director of Public Prosecutions for the respondent

Hearing Date: 19 March 1997

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 9 May 1997

For the reasons given by Ambrose J., I agree that both the application to extend time within which to appeal against conviction and the application for leave to appeal against sentence should be refused.

Like Ambrose J., I see no reason why an indictment should not be framed charging the person accused with carrying on the business of trafficking in dangerous drugs of different varieties. What needs to be established by the Crown in order to prove the carrying on of a business in this context was considered at some length in R. v. El Husseini [1988] 1 Qd.R. 442. It needs little if any adaptation to enable the principles stated in the judgments in that decision to be applied to a case where the business of trafficking is carried on in a variety of drugs. A person trading in drugs may choose to specialise in one kind or to maintain an emporium offering a range of drugs. As long as they all answer the statutory description of “dangerous drug”, there appears to be no reason why such activities may not be viewed as amounting to a single continuing offence of carrying on a business of trafficking in dangerous drugs.

It is only at the stage of sentencing that it may become necessary to make a distinction between first schedule and second schedule drugs in a count of that kind. The maximum sentence applicable to the former is higher than in the case of the latter. Much the same kind of question can arise in relation to other offences under the Criminal Code; for example, under s.210 or s.215, according to whether the victim or victims are below or above the age of 12 when the offence is committed. The process of sentencing is, however, capable of being adjusted to meet that exigency. A problem might exist if the trafficking was carried on substantially in second schedule drugs, but with, say, one instance only of…

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 Jacobs

Details

AGLC: R v Jacobs [1997] QCA 114
Case: [1997] QCA 114
Decision Date: 9/05/1997

CaseChat Overview and Summary

In the case of R v Jacobs, the applicant appealed against his conviction and sentence. The applicant was convicted of carrying on the business of unlawfully trafficking in dangerous drugs, specifically heroin, amphetamine, and other drugs listed in the first and second schedules of the Drugs Misuse Regulations 1987. The applicant argued that the indictment was defective as it charged an offence not created by section 5(1) of the Drugs Misuse Act, which only allows for the trafficking of a single dangerous drug. The applicant contended that the different maximum penalties provided for schedule 1 and schedule 2 drugs indicated a legislative intent that a person may only be charged with trafficking in a single dangerous drug.

The Court of Appeal found that the indictment was not defective and that the applicant's argument was without merit. The Court held that the gravamen of the offence defined in section 5(1) was the carrying on of the business of unlawful drug trafficking, and that the kind of drug involved was a circumstance of aggravation relating only to penalty. The Court further held that the form of the indictment was not bad for duplicity, as it could not be said that there was more than one business of trafficking charged. The Court concluded that the applicant could raise no merits, even "legal merits" which would suffice to set aside the conviction.

Regarding the sentence, the Court found that the sentence of 14 years' imprisonment was within the appropriate range and it could not be said that it was manifestly excessive. The Court also found that the sentence imposed for the unlawful possession and false pretences charges was appropriate, as the learned sentencing judge had kept in mind that the applicant had already been sentenced to a long term of imprisonment.

In conclusion, the Court of Appeal refused to extend the time within which to appeal against conviction and refused leave to appeal against conviction. The Court also refused leave to appeal against the sentence of 14 years' imprisonment imposed on the applicant, as well as the sentence of 12 months' imprisonment imposed on him for the unlawful possession and false pretences charges.

Orders