R v Kennedy - [2000] QCA 140

[2000] QCA 140
COURT OF APPEAL

de JERSEY CJ
McMURDO P
HELMAN J

[R v KENNEDY]

CA No 23 of 2000

THE QUEEN

JAMIE EVAN KENNEDY Applicant

BRISBANE

..DATE 14/04/2000

JUDGMENT

THE CHIEF JUSTICE: I will ask Mr Justice Helman to deliver the first judgment.

HELMAN J: On 18 January this year the applicant pleaded guilty to two offences against the Drugs Misuse Act 1986 committed on 18 March 1999: unlawful possession of the dangerous drug methylamphetamine, and unlawful possession of the dangerous drug cannabis sativa. There was a circumstance of aggravation in relation to the methylamphetamine: the quantity was 7.147 grams, which is in excess of the quantity specified for that drug in the third schedule of the Drugs Misuse Regulation 1987, 2 grams. The learned sentencing judge imposed concurrent sentences of imprisonment for the offences: eighteen months for unlawfully possessing methylamphetamine, and six months for unlawfully possessing cannabis sativa.

The applicant seeks leave to appeal against the sentence of imprisonment for eighteen months, which he asserts is manifestly excessive.

The applicant was born on 13 April 1971 and so was twenty-seven years old when he committed the offences. He was found to be in possession of the drugs when police officers executed a search warrant at a house he occupied with others. He had the drugs in his bedroom. They were for his own use. There were 10.054 grams of cannabis sativa.

The matter had been listed for trial on the day the applicant was sentenced, and it was only on the day before that that the Crown was notified of the applicant's intention to plead guilty.

The applicant had had a good employment history including work in the building trade and the fishing industry. He supported a daughter, now six years old, the issue of a failed union with a woman who had introduced him to drugs. His relationship with the woman came to an end shortly after the child's birth. His counsel told his Honour that the applicant recognised and conceded that he "probably does have a problem with drugs", even though that recognition was something that had been "brought into focus" only in the few months prior to his sentence day, and particularly while he was in prison in connexion with other charges.

The applicant has a criminal history beginning in July 1990 which includes convictions for assault occasioning bodily harm (May 1991), common assault (May 1998), bail offences, four instances of unlawfully possessing cannabis sativa (in May 1992, August 1997, February 1998, and December 1998), as well as some less serious offences. The penalties imposed on the applicant for those previous offences were all non-custodial: fines, fine option orders, and community service orders.

In sentencing the applicant the learned sentencing judge referred to his four prior convictions for the possession of cannabis and to the fact that the quantity of the methylamphetamine was more than three times the quantity specified in the schedule. His Honour observed that methylamphetamine is a drug which can…

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 Kennedy

Details

AGLC: R v Kennedy [2000] QCA 140
Case: [2000] QCA 140
Decision Date: 14/04/2000

CaseChat Overview and Summary

In the case of R v Kennedy, the applicant, Jamie Evan Kennedy, appealed against the sentence imposed on him by the sentencing judge, which was eighteen months imprisonment for unlawful possession of methylamphetamine, and six months for unlawful possession of cannabis sativa. Kennedy pleaded guilty to the charges, which were committed on 18 March 1999. The court was required to determine whether the sentence imposed was manifestly excessive. The legal issues revolved around the appropriate sentencing for drug possession offences, particularly in light of the applicant's criminal history and the quantity of drugs found in his possession.

The Court of Appeal, comprising De Jersey CJ, McMurdo P, and Helman J, considered the case and concluded that the sentence was not manifestly excessive. The sentencing judge had taken into account several factors, including Kennedy's prior criminal history, his employment history, and his role as a sole parent to his six-year-old daughter. The court emphasised the importance of deterrence and the serious consequences of drug possession, particularly with regard to methylamphetamine. Although the sentence was heavy, the court found that it was justified given the quantity of drugs and Kennedy's criminal history. The court also noted that there were no truly comparable sentences before it that would support a finding of manifest excessiveness.

The Court of Appeal, in agreement, refused Kennedy's application for leave to appeal against the sentence. The judges commended Kennedy's legal representatives for appearing pro bono and presenting the case competently.

Orders