R v Jobsz - [2013] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jobsz [2013] QCA 5

PARTIES:

R
v
JOBSZ, Christopher Noel
(applicant)

FILE NO/S:

CA No 315 of 2012
SC No 184 of 2112
SC No 486 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2013

JUDGES:

Chief Justice, White and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application and appeal allowed.

2. Sentence set aside and replaced with the following concurrent sentences:

a. on count 1, imprisonment for four years suspended after 12 months for an operational period of four years;

b. on count 2, imprisonment for 12 months;

c. on count 3, imprisonment for six months;

d. on count 4, imprisonment for nine months; and

e. on count 5, imprisonment for 12 months.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to five drug-related offences of varying severity – the applicant was sentenced to four and a half years imprisonment to be suspended after 16 months – the judge did not impose a separate sentence in respect of each offence – sentence imposed would be excessive for the less serious offences committed – whether the failure to impose separate sentences in respect of each offence requires that the applicant be re-sentenced – whether addiction is a mitigating circumstance for a drug offence in light of positive rehabilitation prospects

R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, distinguished
R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, considered
R v Taylor[2005] QCA 379, considered

COUNSEL:

A Boe for the applicant
G P Cash by for the respondent

SOLICITORS:

Nyst Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: On 23 October 2012, following his pleas of guilty, the applicant was sentenced in relation to five offences: trafficking in cocaine and MDMA “on or about 17 July 2011” (count 1); unlawful possession of more than two grams of each of cocaine and MDMA (the applicant possessed 6.206 grams pure cocaine and 27 MDMA tablets containing 35.612 grams of that drug) (count 2); unlawful possession of a separate quantity of MDMA (.016 grams pure) (count 3); possession of scales, clip seal bags, a spiral notebook and poison (count 4); and possession of cash ($4,250 in his jeans’ pocket) (count 5). He also pleaded guilty to a summary offence, possession of a spoon, which attracted no separate additional penalty.
The learned Judge imposed sentence as follows:
“…in relation to counts 1 to 5, I impose a sentence of four and a half years imprisonment operational for a period of four and a half years, it is to be suspended after you have served 16 months imprisonment”.

The applicant contends…

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 Jobsz

Details

AGLC: R v Jobsz [2013] QCA 5
Case: [2013] QCA 5
Decision Date: 5 February 2013

CaseChat Overview and Summary

In the matter of R v Jobsz, the applicant, who had pleaded guilty to five drug-related offences, sought to appeal the sentence imposed by the court. The applicant was sentenced to four and a half years imprisonment, suspended after 16 months, without the judge imposing separate sentences for each offence. The applicant argued that the sentence was manifestly excessive for the less serious offences and that the failure to impose separate sentences for each offence warranted a re-sentencing. The applicant also submitted that their addiction should be considered as a mitigating circumstance in light of their positive rehabilitation prospects.

The court was required to determine whether the sentence was manifestly excessive or inadequate and whether the failure to impose separate sentences for each offence warranted a re-sentencing. The court also needed to consider whether addiction is a mitigating circumstance for a drug offence, particularly in light of the applicant's positive rehabilitation prospects. The applicant argued that the sentence was manifestly excessive for the less serious offences and that the failure to impose separate sentences for each offence required a re-sentencing. The court needed to assess the severity of each offence and the appropriate sentence for each, taking into account the principles of totality and proportionality.

The court found that the sentence imposed was manifestly excessive for the less serious offences and that the failure to impose separate sentences for each offence warranted a re-sentencing. The court considered the severity of each offence and the appropriate sentence for each, taking into account the principles of totality and proportionality. The court also found that addiction could be a mitigating circumstance for a drug offence, particularly in light of the applicant's positive rehabilitation prospects. The court set aside the original sentence and imposed concurrent sentences for each offence, taking into account the mitigating and aggravating factors.

The court allowed the application and appeal, set aside the original sentence, and replaced it with the following concurrent sentences: on count 1, imprisonment for four years suspended after 12 months for an operational period of four years; on count 2, imprisonment for 12 months; on count 3, imprisonment for six months; on count 4, imprisonment for nine months; and on count 5, imprisonment for 12 months.

Orders

Orders of the court

1. Application and appeal allowed.

2. Sentence set aside and replaced with the following concurrent sentences:

a. on count 1, imprisonment for four years suspended after 12 months for an operational period of four years;

b. on count 2, imprisonment for 12 months;

c. on count 3, imprisonment for six months;

d. on count 4, imprisonment for nine months; and

e. on count 5, imprisonment for 12 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Jobsz [2013] QCA 5
PARTIES:	R v JOBSZ, Christopher Noel (applicant)
FILE NO/S:	CA No 315 of 2012 SC No 184 of 2112 SC No 486 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2013
JUDGES:	Chief Justice, White and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application and appeal allowed. 2. Sentence set aside and replaced with the following concurrent sentences: a. on count 1, imprisonment for four years suspended after 12 months for an operational period of four years; b. on count 2, imprisonment for 12 months; c. on count 3, imprisonment for six months; d. on count 4, imprisonment for nine months; and e. on count 5, imprisonment for 12 months.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant pleaded guilty to five drug-related offences of varying severity – the applicant was sentenced to four and a half years imprisonment to be suspended after 16 months – the judge did not impose a separate sentence in respect of each offence – sentence imposed would be excessive for the less serious offences committed – whether the failure to impose separate sentences in respect of each offence requires that the applicant be re-sentenced – whether addiction is a mitigating circumstance for a drug offence in light of positive rehabilitation prospects R v Crofts [1999] 1 Qd R 386; [1998] QCA 60, distinguished R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, considered R v Taylor[2005] QCA 379, considered
COUNSEL:	A Boe for the applicant G P Cash by for the respondent
SOLICITORS:	Nyst Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent