R v Kalaja - [2012] QCA 329

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kalaja [2012] QCA 329

PARTIES:

R
v
KALAJA, Daniel
(applicant)

FILE NO/S:

CA No 196 of 2012
SC No 896 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2012

JUDGES:

Holmes JA, Gotterson JA, Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on pleas of guilty of numerous drug offences – where the most serious of those offences involved four counts of trafficking in the dangerous drugs cannabis, methylamphetamine; 3, 4 methylenedioxymethamphetamine and gamma-hydroxybutyric acid – where the effective sentence was 14 years imprisonment, with a serious violent offence declaration – where the trafficking in cannabis was said to have occurred over a period of almost three years – where the trafficking occurred notwithstanding the applicant having been charged with offences during the period of trafficking, and being granted bail – where sentencing judge accepted applicant was a user of drugs but did not accept the use of drugs amounted to that of an addict engaging in criminal conduct simply to feed an addiction – where applicant previously convicted of a number of drug offences 10 years earlier and sentenced to nine months imprisonment, wholly suspended for a period of two years – whether sentence manifestly excessive

Drugs Misuse Act 1986 (Qld), s 5(a), s 5(b), s 6(b), s 6(d), s 7(1)(a), s 9(b), s 9(d), s 12

R v Markovski[2009] QCA 299, considered
R v Nabhan; R v Kostopoulos[2007] QCA 266, considered
R v Rodd; ex parte A-G (Qld)[2008] QCA 341, considered

COUNSEL:

M J Byrne QC for the applicant
D L Meredith for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of Boddice J and the order he proposes.

GOTTERSON JA: I agree with the order proposed by Boddice J and with the reasons given by his Honour.

BODDICE J: The applicant seeks leave to appeal sentences of imprisonment imposed on 9 July 2012 in respect of numerous drug offences. The applicant pleaded guilty to the offences. A number of discrete sentences were imposed for each offence, with the periods of imprisonment to be served concurrently. The effective sentence was 14 years imprisonment, with a serious violent offence declaration.

The offences were committed on divers dates between 1 June 2007 and 29 April 2010. The most serious of those offences involved four counts of trafficking in dangerous drugs. The drugs were cannabis, methylamphetamine; 3, 4 methylenedioxymethamphetamine and gamma-hydroxybutyric acid. The trafficking in cannabis was said to have occurred over a period of almost three years,…

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 Kalaja

Details

AGLC: R v Kalaja [2012] QCA 329
Case: [2012] QCA 329
Decision Date: 30 November 2012

CaseChat Overview and Summary

The applicant, a person previously convicted of drug offences, was convicted on pleas of guilty to a number of drug trafficking offences. The most serious of the offences involved trafficking in cannabis, methylamphetamine, 3, 4 methylenedioxymethamphetamine and gamma-hydroxybutyric acid over a period of almost three years. The applicant had been granted bail during the period of offending, and was sentenced to 14 years imprisonment, with a serious violent offence declaration. The applicant sought leave to appeal against the sentence on the ground that it was manifestly excessive.

The central legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive. The applicant argued that the sentence was disproportionate given the nature of the offending and his personal circumstances. The court noted that the applicant had a previous history of drug offending, but was not an addict engaging in criminal conduct simply to feed an addiction. The court also noted that the applicant had been granted bail during the period of offending, and had continued to offend notwithstanding this.

In dismissing the application, the court found that the sentence imposed was not manifestly excessive. The court noted that the applicant had been involved in serious drug offending over a prolonged period of time, and had a previous history of drug offending. The court also noted that the sentence imposed was within the range of sentences typically imposed for such offences. The court held that the sentence imposed was appropriate and not manifestly excessive. The application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal refused.

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 Kalaja [2012] QCA 329
PARTIES:	R v KALAJA, Daniel (applicant)
FILE NO/S:	CA No 196 of 2012 SC No 896 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2012
JUDGES:	Holmes JA, Gotterson JA, Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on pleas of guilty of numerous drug offences – where the most serious of those offences involved four counts of trafficking in the dangerous drugs cannabis, methylamphetamine; 3, 4 methylenedioxymethamphetamine and gamma-hydroxybutyric acid – where the effective sentence was 14 years imprisonment, with a serious violent offence declaration – where the trafficking in cannabis was said to have occurred over a period of almost three years – where the trafficking occurred notwithstanding the applicant having been charged with offences during the period of trafficking, and being granted bail – where sentencing judge accepted applicant was a user of drugs but did not accept the use of drugs amounted to that of an addict engaging in criminal conduct simply to feed an addiction – where applicant previously convicted of a number of drug offences 10 years earlier and sentenced to nine months imprisonment, wholly suspended for a period of two years – whether sentence manifestly excessive Drugs Misuse Act 1986 (Qld), s 5(a), s 5(b), s 6(b), s 6(d), s 7(1)(a), s 9(b), s 9(d), s 12 R v Markovski[2009] QCA 299, considered R v Nabhan; R v Kostopoulos[2007] QCA 266, considered R v Rodd; ex parte A-G (Qld)[2008] QCA 341, considered
COUNSEL:	M J Byrne QC for the applicant D L Meredith for the respondent
SOLICITORS:	Peter Shields Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent