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R v Kashton

R v Kashton

Case [2005] QCA 70 17 March 2005

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SUPREME COURT OF QUEENSLAND

CITATION: R v Kashton [2005] QCA 70
PARTIES: R
v
MILOS KASHTON
(applicant)
FILE NO/S: CA No 416 of 2004
SC No 28 of 2004
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED
EXTEMP ON: 17 March 2005
DELIVERED AT: Brisbane
HEARING DATE: 17 March 2005
JUDGES: Williams JA, Fryberg and Holmes JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Application dismissed
CATCHWORDS: CRIMINAL LAW – Judgment and punishment – Sentence – Factors to be taken into account – Circumstances of offender – Trafficking in heroin and methylamphetamine – Lack of co-operation with administration of justice – Requirements of an early plea of guilty – Whether judge’s starting range for sentencing was excessive – Whether adequate allowance was given for mitigating factors
R v Burrows [2004] QCA 306; CA No 166 of 2004, 20
August 2004, cited
R v Christensen [2002] QCA 113; CA No 313 of 2004; CA
No 314 of 2004, 22 March 2002, cited
R v Geary [2002] QCA 33; [2003] 1 Qd R 64, cited
R v Raciti [2004] QCA 359; CA No 229 of 2004, 29
September 2004, cited
COUNSEL: Mr A Kimmins for the applicant
Mr M J Copley for the respondent
SOLICITORS: Russo Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

FRYBERG J: On 3 November last year upon an indictment charging 17 offences, the applicant was sentenced to 10 years imprisonment for trafficking in heroin and methylamphetamine and to imprisonment for two years for 16 other drug related offences. At the same time, he was sentenced to imprisonment for one year on each of five summary charges. To all of these charges he had pleaded guilty. All imprisonment was concurrent, 712 days pre-sentence custody were declared and a declaration of conviction of a serious violent offence was made.

He now seeks leave to appeal against the 10 year sentence and (implicitly) the declaration of a conviction of a serious violent offence on the ground that the sentence was manifestly excessive.

The trafficking was alleged to have taken place between 1 July possession of drugs, including methylamphetamine of almost 80 per cent purity. He had been under observation for some time and police had observed five people get in and out of his car. A sixth person was in the car with him at the time the chase began. There was $150 in the ashtray, inferentially related to the transaction with the person in the car and $2,510 in the applicant's wallet. Police searched his home and found more drugs, money the proceeds of sale of drugs, a handgun with 47 rounds of ammunition, 10 gold coins and four gold ingots.

2000 and 28 November 2002, a period of almost two and a half
years. The applicant was, in fact, first arrested and charged
on 19 September 2001 after a short police car chase.…

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 Kashton

Details

AGLC: R v Kashton [2005] QCA 70
Case: [2005] QCA 70
Decision Date: 17/03/2005

CaseChat Overview and Summary

The case of R v Kashton was heard in the Supreme Court of Victoria. The defendant, Kashton, was found guilty of trafficking in heroin and methylamphetamine. The appeal against sentence was dismissed by the Court of Appeal, with the Court finding the original sentence to be appropriate. The primary issue before the Court was whether the trial judge had correctly assessed the starting point for sentencing and whether adequate allowance had been made for mitigating factors. Kashton argued that the starting point for sentencing was excessive, and that insufficient weight was given to mitigating factors, including his lack of cooperation with the authorities.

The Court considered the statutory framework for sentencing in Victoria and the principles applicable to the assessment of mitigating factors. The Court noted that while the starting point for sentencing may be influenced by the severity of the offence, it must also take into account the personal circumstances of the offender. In this case, the trial judge had considered the nature and circumstances of the offence, the defendant’s criminal history, and his lack of cooperation with the authorities. The Court found that the trial judge had appropriately weighed these factors and set a starting point for sentencing that was commensurate with the seriousness of the offence. The Court further found that the trial judge had given adequate weight to the mitigating factors, including the defendant’s lack of cooperation, and that the sentence imposed was appropriate.

The Court of Appeal found that the trial judge had correctly assessed the starting point for sentencing and had given adequate weight to the mitigating factors. The Court dismissed the appeal against sentence and affirmed the original sentence imposed by the trial judge. The Court emphasised the importance of the trial judge’s role in assessing the appropriate sentence for an offender, and the need for appellate courts to give deference to the trial judge’s assessment of the facts and circumstances of the case. The Court also noted the importance of the principles of proportionality and individualisation in sentencing, and the need to strike a balance between these principles and the need to deter serious criminal behaviour.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Kashton [2005] QCA 70

Most Recent Citation

R v Tran [2006] QCA 174

Cases citing this decision · 20 of 20 shown

R v Lowien
[2020] QCA 186 Para 7

…a sch 2 drug under the Drug Misuse Act 1986 (Qld) at the time of the offending in Burrows , unlike the position in relation to the present case. [26][2005] QCA 70.…
R v Chung
[2018] QCA 161 Para 4

…ars imprisonment was very much open”.[29] [29] Munoz [2012] QCA 269 at [16], referring to R v Feakes [2009] QCA 376 at [23]-[33], and R v Kashton [2005] QCA 70.…
R v Os
[2016] QCA 278 Para 32

…and, given the level of co-operation, by around 30 to 40 per cent. R v Harbas [3] was relied upon to support this submission. [1][2004] QCA 306. [2][2005] QCA 70. [3][2013] The sentence imposed…
R v Ahmetaj
[2015] QCA 248 Para 13

…. ( Ellis ) [72]Unreported, Atkinson J, SC No 889 of 2008, 18 May 2009. ( Falzon ) [73][2013] QCA 51. ( Galeano ) [74][2007] QCA 433. ( Johnson ) [75][2005] QCA 70. ( Kashton ) [76][2002] QCA 252. ( Popa ) [77][2012] QCA 164. ( Prendergast ) [78][2008] QCA 341. ( Rodd ) [79]Unreported, Martin J, SC No 902 of 200…
R v Brown
[2015] QCA 225 Para 13

…assed through his hands during the trafficking period. His trafficking was commercially motivated. After reviewing the cases of R v Kashton [2005] QCA 70; R v Assurson (2007) 174 A Crim R 78, [2007] QCA 273; Rodd ; R v Elizalde [2006] QCA 330; R v Bradforth [2003] QCA 183 and R v Raciti [2004] QCA 359 this Court…
R v McGinniss
[2015] QCA 34 Para 11

…,000 passed through his hands during the trafficking period. His trafficking was commercially motivated. After reviewing the cases of R v Kashton [2005] QCA 70 ; R v Assurson (2007) 174 A Crim R 78, [2007] QCA 273; Rodd ; R v Elizalde [2006] QCA 330; R v Bradforth [2003] QCA 183 and R v Raciti [2004] QCA 359 thi…
R v Safi
[2015] QCA 13 Para 17

…all of the circumstances of this case. I do not accept the submission for the applicant that the decisions in R v Boyd [2013] QCA 335 and R v Kashton [2005] QCA 70 “bracket the appropriate exercise of the sentencing discretion in this instance.” The only question in Kashton was whether the sentence of 10 years i…
R v Johnson
[2014] QCA 79 Para 1

…pects of rehabilitation. Whilst a sentence of nine years imprisonment could have been imposed, the 10 year sentence was not manifestly excessive. [15][2005] QCA 70. [16](2007) 174 A Crim R 78; [2007] QCA 273. [17][2006] QCA 330. [18][2003] QCA 183. [19][2004] QCA 359.…
R v Ryan
[2014] QCA 78 Para 1

…ing at the time of his sentence for trafficking. The totality principle required moderation of the trafficking sentence to 10 years imprisonment. [14][2005] QCA 70. [15][2013] QCA 51, [31]. [16](1988) 166 CLR 59, Wilson, Deane, Dawson, Toohey and Gaudron JJ 62-63.…
R v SBZ
[2013] QCA 176 Para 1

…v Westphal [5]; R v Rodd; ex parte A-G (Qld) [6] and R v Kashton .[7] [3][2003] QCA 183. [4][2009] QCA 376. [5][2009] QCA 223. [6][2008] QCA 341. [7][2005] QCA 70.…
R v Galeano
[2013] QCA 51 Para 1

…ance regarding the source of his drugs. A sentence for him of 10 years after allowing for a modest discount for the plea, was affirmed on appeal. [26][2005] QCA 70.…
R v Munoz
[2012] QCA 269 Para 1

…s 10 year sentence was at "the bottom of the range for cases involving pleas of guilty to trafficking in schedule 1 drugs on a substantial scale". [4][2005] QCA 70.…
R v Feakes
[2009] QCA 376 Para 1

…v Saunders .[16] He contends that, if the starting point after a trial was 10 to 12 years, the judge gave insufficient weight to the guilty plea. [12][2005] QCA 70. [13][2007] QCA 273. [14][2008] QCA 341. [15][2006] QCA 330. [16][2007] QCA 93.…
R v Westphal
[2009] QCA 223 Para 1

…n bail, the applicant was in possession of 85 grams of gamma-hydroxybutyric acid, half a gram of cocaine, 22 grams of ecstasy and a set of scales. [6][2005] QCA 70. [7][2003] QCA 183.…
R v. Rodd; ex parte A-G (Qld)
[2008] QCA 341 Para 1

…alternatively, that even with the nine year term, a declaration should have been made under s 161B(3). Mr Meredith relied particularly on R v Kashton [2005] QCA 70, for a contention that the appropriate range of penalty applicable to this case of trafficking was 10 to 12 years imprisonment. In Kashton (p 12), Fr…
R v. Thompson
[2008] QCA 256 Para 1

…sentences were R v Zeremes & Zeremes [2003] QCA 255, R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, R v Elizalde [2006] QCA 330 and R v Kashton [2005] QCA 70. It was also said by her that the applicant’s sentence was affected by the question of parity with Feehan and the others sentenced in connection with…
R v. Ly; R v Kyprianou
[2008] QCA 149 Para 1

…nifestly excessive and that a sentence of between nine and 10 years should be substituted. [6][2007] QCA 64. [7][2007] QCA 266. [8][1999] QCA 424. [9][2005] QCA 70.…
R v Cannon
[2007] QCA 205 Para 1

…. [10][2002] QCA 113; CA No 313 of 2001, 22 March 2002 [11] [2003] 1 Qd R 64; [2002] QCA 33 [12][2004] QCA 306; CA No 166 of 2004, 20 August 2004 [13][2005] QCA 70; CA No 416 of 2004, 17 March 2005…
R v O'Brien
[2006] QCA 482

…ilitation – whether sentence should be reduced R v Rizk [2004] QCA 382; CA No 224 of 2004, 15 October 2004, cited R v Kashton [2005] QCA 70; CA No 416 of 2004, 17 March 2005, cited R v Barton [2006] QCA 367; CA No 25 of 2006, 22 September 2006, considered R v Bradforth [2003] QCA 183, cited R v Taylor [2005] QCA…
R v Tran
[2006] QCA 174 Para 1

…On the applicant’s behalf reliance was placed on decisions such as R v Bradforth [2003] QCA 183, R v Raciti [2004] QCA 359 and R v Kashton [2005] QCA 70 as indicating that the appropriate sentencing range for the trafficking engaged in by the applicant, where there was a plea, was between 10 and 12 years. Given…

View all 20 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Raciti
[2004] QCA 359

…] QCA 113; CA No 313 of 2004; CA No 314 of 2004, 22 March 2002, cited R v Geary [2002] QCA 33; [2003] 1 Qd R 64, cited R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, cited COUNSEL: Mr A Kimmins for the applicant Mr M J Copley for the respondent SOLICITORS: Russo Lawyers for the applicant Directo…
R v York; ex parte
[2004] QCA 361

…R v York [2004] QCA 361 was an exceptional case. There, there had been an unusual level of co-operation with the authorities. The period of trafficking involved was shorter than that in the present case and the accused had no previous drug history. Most importantly, however, the starting point was determined not…
R v Burrows
[2004] QCA 306

…her judge’s starting range for sentencing was excessive – Whether adequate allowance was given for mitigating factors R v Burrows [2004] QCA 306; CA No 166 of 2004, 20 August 2004, cited R v Christensen [2002] QCA 113; CA No 313 of 2004; CA No 314 of 2004, 22 March 2002, cited R v Geary [2002] QCA 33; [2003] 1 Qd…
R v Bradforth
[2003] QCA 183

…sentence for large scale trafficking in schedule 1 drugs has come before this Court on a number of occasions in recent times, of which R v Bradforth [2003] QCA 183 is to my mind the most relevant decision. There the applicant was sentenced at first instance to 12 years imprisonment with a declaration under secti…
R v Christensen
[2002] QCA 113

…e allowance was given for mitigating factors R v Burrows [2004] QCA 306; CA No 166 of 2004, 20 August 2004, cited R v Christensen [2002] QCA 113; CA No 313 of 2004; CA No 314 of 2004, 22 March 2002, cited R v Geary [2002] QCA 33; [2003] 1 Qd R 64, cited R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2…
R v Geary
[2002] QCA 33

…2004, 20 August 2004, cited R v Christensen [2002] QCA 113; CA No 313 of 2004; CA No 314 of 2004, 22 March 2002, cited R v Geary [2002] QCA 33; [2003] 1 Qd R 64, cited R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, cited COUNSEL: Mr A Kimmins for the applicant Mr M J Copley for the respondent…
R v Le; Ex Parte A-g
[2000] QCA 392

…R v Le [2000] QCA 392 was drawn to the attention of the judge below. In that case the majority of the Court, Thomas JA (with whom Pincus JA agreed, saying that the question was one on which his Honour's mind had fluctuated) rejected an appeal by the Attorney-General against a sentence of seven years imprisonment,…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Kashton [2005] QCA 70
PARTIES:	R v MILOS KASHTON (applicant)
FILE NO/S:	CA No 416 of 2004 SC No 28 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED
EXTEMP ON:	17 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2005
JUDGES:	Williams JA, Fryberg and Holmes JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – Judgment and punishment – Sentence – Factors to be taken into account – Circumstances of offender – Trafficking in heroin and methylamphetamine – Lack of co-operation with administration of justice – Requirements of an early plea of guilty – Whether judge’s starting range for sentencing was excessive – Whether adequate allowance was given for mitigating factors
R v Burrows [2004] QCA 306; CA No 166 of 2004, 20 August 2004, cited R v Christensen [2002] QCA 113; CA No 313 of 2004; CA No 314 of 2004, 22 March 2002, cited R v Geary [2002] QCA 33; [2003] 1 Qd R 64, cited R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, cited
COUNSEL:	Mr A Kimmins for the applicant Mr M J Copley for the respondent
SOLICITORS:	Russo Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent