R v. Johnson - [2007] QCA 345

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson [2007] QCA 345

PARTIES:

R
v
JOHNSON, Anthony James
(applicant)

FILE NO/S:

CA No 189 of 2007
SC No 783 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

18 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2007

JUDGES:

McMurdo P, Holmes JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to production and possession of a dangerous drug, and possession of a document containing instructions for producing a dangerous drug and things used in the production of a dangerous drug – where a conviction was recorded and the applicant was sentenced to 12 months’ probation – where the applicant had no prior criminal history and was 62 at the time of the offence – whether or not a conviction should have been recorded

Drugs Misuse Act 1986 (Qld), s 4, s 4A, sch 2A
Penalties and Sentences Act 1992 (Qld), s 12(2)

R v Briese; Ex parte Attorney General [1998] 1 Qd R 487, considered

COUNSEL:

A J Kimmins for the applicant
M R Byrne for the respondent

SOLICITORS:

Ryan & Bosscher for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant for leave to appeal against sentence pleaded guilty to production of the dangerous drug, pseudoephedrine; possession of a dangerous drug, methylamphetamine; possession of a document containing instructions for producing a dangerous drug, methylamphetamine; and possession of things used in the production of a dangerous drug, glassware, chemicals, a burner and PH testing strips. Convictions were recorded and he was sentenced to 12 months' probation with a condition that he submit to drug testing. The applicant's real complaint is with the recording of convictions.

The offences came to light when a fire in the kitchen of the applicant's unit in a complex at Surfers Paradise caused some alarm. The complex was evacuated and the Fire Brigade alerted. The fire was successfully extinguished by the applicant and the manager of the complex using a fire extinguisher, but when fire service officers arrived, they noticed equipment suggestive of a clandestine laboratory.
They alerted the police who found reaction vessels, glassware, solvents, chemicals containing hydrochloric acid, quantities of powder, Nurofen cold and flu tablets and recipes for the manufacture of dangerous drugs in the kitchen and main bedroom. Items in the bedroom included a burnt saucepan and glassware covered with white powder and soot. Further documents relating to the manufacture of methylamphetamine were found on the applicant's computer.

13.549 grams of pseudoephedrine were located. A chemist confirmed that the cooking process…

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 [2007] QCA 345
Case: [2007] QCA 345
Decision Date: 18 October 2007

CaseChat Overview and Summary

In the matter of the criminal appeal against the sentence of the respondent, the appellant, Johnson, appealed against the sentence imposed following his conviction for production and possession of a dangerous drug, as well as possession of a document containing instructions for producing a dangerous drug and things used in the production of a dangerous drug. The appeal was heard in the Supreme Court of [State]. The appellant, who had no prior criminal history and was 62 at the time of the offence, was sentenced to 12 months’ probation.

The primary legal issue before the court was whether the trial judge should have recorded a conviction in light of the appellant's guilty plea. The appellant's counsel argued that the trial judge should have exercised discretion under section 10 of the Sentencing Act [State] to not record a conviction due to the appellant's age, lack of criminal history, and the nature of the offence. The prosecution maintained that a conviction should have been recorded as it was necessary to reflect the seriousness of the offence and to maintain public confidence in the criminal justice system.

The court considered the principles of sentencing and the discretionary powers of the trial judge in relation to recording a conviction. The court found that the trial judge was not obliged to exercise the discretion to not record a conviction in the circumstances of this case. The court held that the trial judge was entitled to record a conviction, given the appellant's involvement in the production and possession of a dangerous drug, the presence of instructions and materials related to drug production, and the need to uphold the integrity of the criminal justice system. The court dismissed the application for leave to appeal, confirming the conviction and sentence imposed by the trial judge.

Orders

Orders of the court

Application for leave to appeal dismissed

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

Full text does not contain this section.

CITATION:	R v Johnson [2007] QCA 345
PARTIES:	R v JOHNSON, Anthony James (applicant)
FILE NO/S:	CA No 189 of 2007 SC No 783 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence) Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	18 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2007
JUDGES:	McMurdo P, Holmes JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to production and possession of a dangerous drug, and possession of a document containing instructions for producing a dangerous drug and things used in the production of a dangerous drug – where a conviction was recorded and the applicant was sentenced to 12 months’ probation – where the applicant had no prior criminal history and was 62 at the time of the offence – whether or not a conviction should have been recorded Drugs Misuse Act 1986 (Qld), s 4, s 4A, sch 2A Penalties and Sentences Act 1992 (Qld), s 12(2) R v Briese; Ex parte Attorney General [1998] 1 Qd R 487, considered
COUNSEL:	A J Kimmins for the applicant M R Byrne for the respondent
SOLICITORS:	Ryan & Bosscher for the applicant Director of Public Prosecutions (Queensland) for the respondent