R v Jenkins - [1999] QCA 447

99.447

COURT OF APPEAL

McMURDO P THOMAS JA ATKINSON J

CA No 148 of 1999
THE QUEEN
v.

DARREN JOHN JENKINS

Applicant

BRISBANE
..DATE 27/10/99
271099 T19-20/RB28 M/T COA258/99
THOMAS JA: The applicant was convicted of three counts of
possession of dangerous drugs, namely cocaine,
methylamphetamine, cannabis sativa and lysergide with a
circumstance of aggravation. The drugs were found after a
police raid under a search warrant.

For the first two counts the applicant was sentenced to four years' imprisonment suspended after 12 months with an operational period of five years. For the third count of possession he was sentenced to six months imprisonment with a three year probation period from the date of sentencing.

The applicant is 24 years old with previous convictions for obscene language, breaching a bail undertaking and breaching the Bail Act. The drugs were found in two motor vehicles owned by the applicant and in his residence. In his Range Rover there was a bag containing 27.7 grams of white powder which consisted of 19.2 grams of pure cocaine. The prescribed limit under the third schedule, it may be noted, is 2 grams. There was also a plastic bag containing

50 methylamphetamine tablets which analysed at .289 grams
pure.

In the applicant's Nissan Pulsar was found a bag of white powder being methylamphetamine in the amount of 55.507 grams, 2.5 grams pure. There was also a bag of cocaine containing 9.831 grams of powder which revealed 5.564 grams pure and two bags of cannabis sativa containing respectively 65.1 grams and 154.3 grams.

271099 T19-20/RB28 M/T COA258/99
Inside the residence in various locations, including the
bedroom, refrigerator and the applicant's shirt pocket and
wallet there were found five bags of cannabis sativa
containing quantities between 1.4 and 20.8 grams of seeds,
three packets or lots of cocaine containing 1.405 grams
pure, a tin containing six bags of pills with a small
quantity of methylamphetamine and 96 squares of LSD
revealing .004758 grams of pure LSG.

The first principal argument advanced by counsel for the applicant is that the learned sentencing Judge erred in regarding as relevant his finding that the applicant's possession of the drugs was for a commercial purpose. The rather bold submission which was advanced is that such a matter is not relevant to a charge of possession. That certainly runs counter to many cases that have been decided in this Court and indeed all over Australia.

In my view, possession for a commercial purpose makes the possession far more serious or heinous and it is a very relevant factor. The argument proceeded that as additional criminality might be inferred from possession for such a purpose, some other offence ought to be charged such as trafficking. I have difficulty in following the argument because there are different elements involved in a charge of trafficking.

To my mind in a possession charge the purpose of the possession is relevant to an understanding of the level of 271099 T19-20/RB28 M/T COA258/99

seriousness of the offender's actions.…

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 Jenkins

Details

AGLC: R v Jenkins [1999] QCA 447
Case: [1999] QCA 447
Decision Date: 27/10/1999

CaseChat Overview and Summary

The Court of Appeal considered the case of The Queen v Darren John Jenkins, where Jenkins was convicted on three counts of possession of dangerous drugs. The drugs, which included cocaine, methylamphetamine, cannabis sativa, and lysergide, were discovered during a police raid under a search warrant. Jenkins was sentenced to four years' imprisonment suspended after 12 months with an operational period of five years for the first two counts and six months imprisonment with a three-year probation period from the date of sentencing for the third count. Jenkins' appeal against his sentence focused on several issues, including whether the possession of the drugs was for a commercial purpose and the relevance of this factor in sentencing, and whether the sentence imposed was excessive.

The court found that possession for a commercial purpose was a relevant factor in determining the seriousness of the offence, as it indicated a greater level of criminality and potential harm to the community. The court noted the significant quantity, variety, and value of the drugs, the presence of packaging and cutting agents, and the distribution of the drugs across multiple locations as evidence supporting the finding of commercial possession. The court also considered Jenkins' financial situation, noting that despite being on Social Security, he had significant expenses and activities inconsistent with his claimed financial status. The court rejected Jenkins' argument that the purpose of possession was irrelevant to the charge and upheld the sentencing judge's finding.

Regarding the sentence, the court found that it was not excessive, noting the suspended nature of the sentence and its alignment with previous cases. However, the court identified an error in the sentencing judge's imposition of probation on the third count while imposing imprisonment on the first two counts. The court replaced the probationary sentence with a six-month imprisonment sentence, concurrent with the sentences on counts 1 and 2.

The appeal was granted in part, with the sentence on count 3 set aside and replaced with a six-month imprisonment sentence. The court otherwise confirmed the original sentence.

Orders