R v Johnson - [2015] QCA 171

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson [2015] QCA 171

PARTIES:

R
v
JOHNSON, Lee Harold
(applicant)

FILE NO/S:

CA No 174 of 2015
DC No 172 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Unreported, 6 August 2015

DELIVERED ON:

18 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2015

JUDGES:

Holmes CJ and Gotterson JA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal against sentence.

2.   Allow the appeal.

3.   Set aside the sentences imposed and substitute the following:

(a)      on Count 1, a sentence of nine months’ imprisonment;

(b)      on Count 2, a sentence of one month’s imprisonment;

(c)      on Count 3, a sentence of three months’ imprisonment;

(d)      on Count 4, a sentence of six months’ imprisonment;

(e)      on Count 5, a sentence of one month’s imprisonment

all sentences wholly suspended with an operational period of two years.

4.   Declare that the applicant has served imprisonment between 6 August 2015 and 18 September 2015, a period of 44 days, under those sentences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs, three counts of possessing a dangerous drug and one count of possessing a thing used in the commission of a crime – where the applicant was sentenced to 18 months imprisonment in respect of the trafficking count; nine months, 12 months and six months on the possession counts; and three months for the possession of things count, to be served concurrently and suspended after four months for an operational period of two years – where the drugs in question were a form of “synthetic cannabis” – where the applicant, who operated a tobacconist shop, acquired the drugs lawfully prior to the amendment of the definition of “dangerous drug” in s 4 of the Drugs Misuse Act 1986 (Qld) – where the applicant admitted to police that he knew of the drug’s illegal status, but had intended to sell the remainder of his stock – where the applicant cooperated with police but attempted to conceal his possession of some of the drug – where the applicant traded openly and kept records of his sales – where the applicant had no criminal history – whether the sentence was manifestly excessive

Drugs Misuse Act 1986 (Qld), s 4
Drugs Misuse Regulation 1987 (Qld), Schedule 2

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, applied
R v Beynon, unreported, Clare DCJ SC, District Court of Queensland, 2 February 2015, considered
R v Dolan[2008] QCA 41, distinguished
R v Gault[2006] QCA 316, distinguished
R v Jack, unreported, Reid DCJ, District Court of Queensland, 8 August 2013, considered
R v Moller,…

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 Johnson

Details

AGLC: R v Johnson [2015] QCA 171
Case: [2015] QCA 171
Decision Date: 18 September 2015

CaseChat Overview and Summary

The case of R v Johnson involved the applicant appealing against the sentence imposed by the District Court of Queensland. The applicant had pleaded guilty to various drug-related offences, including trafficking in dangerous drugs and possessing items used in the commission of a crime. The court sentenced the applicant to a total of 18 months imprisonment, to be suspended after four months, for trafficking; nine, 12 and six months imprisonment for three counts of possessing a dangerous drug; and three months imprisonment for possessing a thing used in the commission of a crime. The applicant appealed, arguing that the sentence was manifestly excessive. The appeal was heard in the Queensland Court of Appeal.

The primary legal issue for the court to determine was whether the sentence imposed was manifestly excessive. The court considered the nature of the offences, the applicant's role in them, and the relevant sentencing principles. The court noted that the applicant had no prior criminal history and had cooperated with the police, but had also attempted to conceal some of the drugs. The court also considered the nature of the drugs, which were a form of synthetic cannabis. The court had to balance the need for deterrence and denunciation against the principles of proportionality and rehabilitation.

The court found that the sentence was indeed manifestly excessive. The court noted that the applicant's role in the offences was not as a major trafficker, but rather as someone who had acquired the drugs lawfully before they were made illegal. The court also noted that the applicant had cooperated with the police and had attempted to conceal only a portion of the drugs. The court concluded that the sentence imposed was disproportionate to the applicant's role in the offences and did not achieve the purposes of sentencing. The appeal was therefore allowed, and the sentences were set aside and replaced with wholly suspended sentences with an operational period of two years.

The court also noted that the applicant had already served 44 days of the sentence and declared that this time was to be counted as time served under the new sentences. This meant that the applicant would not have to serve any further time in prison, provided they complied with the conditions of the suspended sentences.

Orders

Orders of the court

1. Grant the application for leave to appeal against sentence.

2. Allow the appeal.

3. Set aside the sentences imposed and substitute the following:

(a) on Count 1, a sentence of nine months’ imprisonment;

(b) on Count 2, a sentence of one month’s imprisonment;

(d) on Count 4, a sentence of six months’ imprisonment;

(e) on Count 5, a sentence of one month’s imprisonment

all sentences wholly suspended with an operational period of two years.

4. Declare that the applicant has served imprisonment between 6 August 2015 and 18 September 2015, a period of 44 days, under those sentences.

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 Johnson [2015] QCA 171
PARTIES:	R v JOHNSON, Lee Harold (applicant)
FILE NO/S:	CA No 174 of 2015 DC No 172 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Unreported, 6 August 2015
DELIVERED ON:	18 September 2015
DELIVERED AT:	Brisbane
HEARING DATE:	14 September 2015
JUDGES:	Holmes CJ and Gotterson JA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal against sentence. 2. Allow the appeal. 3. Set aside the sentences imposed and substitute the following: (a) on Count 1, a sentence of nine months’ imprisonment; (b) on Count 2, a sentence of one month’s imprisonment; (c) on Count 3, a sentence of three months’ imprisonment; (d) on Count 4, a sentence of six months’ imprisonment; (e) on Count 5, a sentence of one month’s imprisonment all sentences wholly suspended with an operational period of two years. 4. Declare that the applicant has served imprisonment between 6 August 2015 and 18 September 2015, a period of 44 days, under those sentences.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs, three counts of possessing a dangerous drug and one count of possessing a thing used in the commission of a crime – where the applicant was sentenced to 18 months imprisonment in respect of the trafficking count; nine months, 12 months and six months on the possession counts; and three months for the possession of things count, to be served concurrently and suspended after four months for an operational period of two years – where the drugs in question were a form of “synthetic cannabis” – where the applicant, who operated a tobacconist shop, acquired the drugs lawfully prior to the amendment of the definition of “dangerous drug” in s 4 of the Drugs Misuse Act 1986 (Qld) – where the applicant admitted to police that he knew of the drug’s illegal status, but had intended to sell the remainder of his stock – where the applicant cooperated with police but attempted to conceal his possession of some of the drug – where the applicant traded openly and kept records of his sales – where the applicant had no criminal history – whether the sentence was manifestly excessive Drugs Misuse Act 1986 (Qld), s 4 Drugs Misuse Regulation 1987 (Qld), Schedule 2 AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, applied R v Beynon, unreported, Clare DCJ SC, District Court of Queensland, 2 February 2015, considered R v Dolan[2008] QCA 41, distinguished R v Gault[2006] QCA 316, distinguished R v Jack, unreported, Reid DCJ, District Court of Queensland, 8 August 2013, considered R v Moller,…