R v Kalaja - [2002] QCA 508

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kalaja [2002] QCA 508

PARTIES:

R
v
KALAJA, Pjeter Frank
(applicant)

FILE NO/S:

CA No 300 of 2002
SC No 405 of 2002
SC No 410 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court of Brisbane

DELIVERED EXTEMPORE ON:

20 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2002

JUDGES:

McPherson and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CIRCUMSTANCES OF OFFENDER – where applicant pleaded guilty to drug related offences and to a charge of dangerous operation of a motor vehicle, on the same day but on a different indictment – where applicant sentenced to imprisonment for the drug offences – where only penalty for the driving offence was the disqualification of the applicant’s driver’s licence for four years – where applicant submits that sentences for drug offences are manifestly excessive – where learned sentencing judge sentenced the applicant for the drug offences with respect to the overall criminality established by his pleas to both indictments – where applicant’s driving offence alone would have justified a sentence of imprisonment – whether sentence manifestly excessive

R v Clarke [1995] QCA 111; CA No 38 of 1995, 16 March 1995, distinguished

COUNSEL:

M J Byrne QC for the applicant
T A Fuller for the respondent

SOLICITORS:

Boe & Callaghan for the applicant
Directory of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On the 13th of September 2002 the applicant, Pjeter Kalaja, was sentenced in the Supreme Court on his pleas of guilty to five drug-related offences charged on an
ex officio indictment, and was sentenced to concurrent terms of 18 months imprisonment to be suspended after he had served six months, with the operational period of suspension being three years. He also pleaded guilty that same day to a charge of dangerous operation of a motor vehicle which charge was presented on a second indictment; and on that charge it was ordered that he be disqualified from holding or obtaining a driver's licence for a period of four years. No other penalty was expressly imposed for that offence and it appears that the learned Judge sentenced for the offences disclosed on the ex officio indictment in respect of the overall criminality established by the pleas to both indictments.

The drug-related counts to which Mr Kalaja pleaded guilty were unlawfully possessing cannabis sativa on 12 September 2001, count 1; unlawfully supplying cannabis sativa to another on 12 September 2001, count 2; a further charge of unlawfully supplying cannabis sativa to another on 12 September 2001, count 3; possessing on 12 September 2001 a sum of money obtained from supplying that cannabis sativa when knowing that money had been so obtained, count 4; possessing on 12 September 2001 a motor vehicle and a mobile telephone…

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 [2002] QCA 508
Case: [2002] QCA 508
Decision Date: 20 November 2002

CaseChat Overview and Summary

In the matter of R v Kalaja, the applicant appealed against the sentence imposed by the sentencing judge in the District Court of New South Wales. The applicant had pleaded guilty to drug related offences and to a charge of dangerous operation of a motor vehicle. The sentencing judge sentenced the applicant to imprisonment for the drug offences and disqualified the applicant's driver's licence for four years for the driving offence. The applicant submitted that the sentence for the drug offences was manifestly excessive, considering the penalty for the driving offence.

The legal issue before the court was whether the sentence imposed for the drug offences was manifestly excessive. The court considered whether the sentencing judge had taken into account the overall criminality established by the applicant's pleas to both indictments and whether the applicant's driving offence alone would have justified a sentence of imprisonment. The court noted that the sentencing judge had considered the totality of the applicant's offending and had imposed a sentence that reflected the seriousness of the drug offences.

The court found that the sentencing judge had appropriately considered the overall criminality established by the applicant's pleas and had imposed a sentence that was not manifestly excessive. The court noted that the applicant's driving offence alone would have justified a sentence of imprisonment, and that the sentence for the drug offences was proportionate to the seriousness of the offending. The court dismissed the application, holding that the sentence imposed by the sentencing judge was appropriate.

The court dismissed the application and affirmed the sentence imposed by the sentencing judge. The court held that the sentence for the drug offences was proportionate to the seriousness of the offending and that the sentencing judge had appropriately considered the overall criminality established by the applicant's pleas. The court found that the sentence was not manifestly excessive and dismissed the application.

Orders

Orders of the court

Application 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

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CITATION:	R v Kalaja [2002] QCA 508
PARTIES:	R v KALAJA, Pjeter Frank (applicant)
FILE NO/S:	CA No 300 of 2002 SC No 405 of 2002 SC No 410 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court of Brisbane
DELIVERED EXTEMPORE ON:	20 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2002
JUDGES:	McPherson and Jerrard JJA and Philippides J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CIRCUMSTANCES OF OFFENDER – where applicant pleaded guilty to drug related offences and to a charge of dangerous operation of a motor vehicle, on the same day but on a different indictment – where applicant sentenced to imprisonment for the drug offences – where only penalty for the driving offence was the disqualification of the applicant’s driver’s licence for four years – where applicant submits that sentences for drug offences are manifestly excessive – where learned sentencing judge sentenced the applicant for the drug offences with respect to the overall criminality established by his pleas to both indictments – where applicant’s driving offence alone would have justified a sentence of imprisonment – whether sentence manifestly excessive R v Clarke [1995] QCA 111; CA No 38 of 1995, 16 March 1995, distinguished
COUNSEL:	M J Byrne QC for the applicant T A Fuller for the respondent
SOLICITORS:	Boe & Callaghan for the applicant Directory of Public Prosecutions (Queensland) for the respondent