R v Kerma - [2006] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kerma [2006] QCA 127

PARTIES:

R
v
KERMA, Gensi
(applicant/appellant)

FILE NO/S:

CA No 75 of 2005
SC No 68 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

21 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2006

JUDGES:

Williams and Keane JJA, Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence allowed, and the appeal against sentence upheld only to the extent of substituting a sentence of eight years imprisonment on the production charge

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant convicted of unlawfully trafficking in a dangerous drug (cannabis sativa), unlawfully producing a dangerous drug (cannabis sativa) with the quantity of the drug exceeding 500 grams, and possession of equipment used in connection with producing a dangerous drug - whether on the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF CASE - where appellant challenged learned trial judge's directions on the use of videotape identification evidence - where appellant challenged learned trial judge's directions on the appellant's association with other persons convicted of related offences - where appellant challenged learned trial judge's directions in relation to evidence of cash transactions - where appellant challenged general comments and observations made by learned trial judge - whether appellant deprived of a fair trial

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 - PARTICULAR OFFENCES - OTHER OFFENCES - where appellant sentenced to concurrent sentences of imprisonment including nine and a half years (production of cannabis), eight years (trafficking in cannabis), four years (possession of cannabis) and two years (possession of equipment used in connection with producing a dangerous drug) - where appellant involved in substantial criminal enterprise - where questions of parity arose because another accused involved in the enterprise was sentenced to eight years imprisonment on a charge of production of cannabis - whether leave should be granted and whether the sentence imposed was manifestly excessive or otherwise erroneous

Criminal Code1899 (Qld), s 590A

Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, cited
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, cited
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, cited
R v Panichelli…

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 Kerma

Details

AGLC: R v Kerma [2006] QCA 127
Case: [2006] QCA 127
Decision Date: 21 April 2006

CaseChat Overview and Summary

The appellant was convicted of trafficking in and producing a dangerous drug, namely cannabis sativa, with the quantity of the drug exceeding 500 grams, and possession of equipment used in connection with producing a dangerous drug. The appellant appealed against his conviction, arguing that it was unreasonable or insupportable on the whole of the evidence. The appellant also sought leave to appeal against his sentence, arguing that it was manifestly excessive or otherwise erroneous. The appeal against conviction was dismissed by the Court of Appeal, and the application for leave to appeal against sentence was allowed, with the sentence being substituted for one of eight years imprisonment on the production charge.

The primary legal issues for the Court of Appeal to decide were whether the conviction was unreasonable or insupportable, and whether the appellant was deprived of a fair trial due to alleged misdirections and non-directions by the learned trial judge. The Court of Appeal also needed to determine whether the sentence imposed was manifestly excessive or otherwise erroneous, and whether parity with other offenders should be considered.

The Court of Appeal considered the evidence presented at trial and found that it was reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The Court of Appeal also found that the trial judge's directions on the use of videotape identification evidence, association with other persons convicted of related offences, and evidence of cash transactions were not erroneous. The Court of Appeal found that the appellant was not deprived of a fair trial. The Court of Appeal considered the sentence imposed and found that it was not manifestly excessive or otherwise erroneous, but that parity with another offender involved in the same criminal enterprise should be considered. The Court of Appeal allowed the application for leave to appeal against sentence and substituted a sentence of eight years imprisonment on the production charge.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence allowed, and the appeal against sentence upheld only to the extent of substituting a sentence of eight years imprisonment on the production charge

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.

CITATION:	R v Kerma [2006] QCA 127
PARTIES:	R v KERMA, Gensi (applicant/appellant)
FILE NO/S:	CA No 75 of 2005 SC No 68 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	21 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2006
JUDGES:	Williams and Keane JJA, Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence allowed, and the appeal against sentence upheld only to the extent of substituting a sentence of eight years imprisonment on the production charge
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant convicted of unlawfully trafficking in a dangerous drug (cannabis sativa), unlawfully producing a dangerous drug (cannabis sativa) with the quantity of the drug exceeding 500 grams, and possession of equipment used in connection with producing a dangerous drug - whether on the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF GENERAL CONDUCT OF CASE - where appellant challenged learned trial judge's directions on the use of videotape identification evidence - where appellant challenged learned trial judge's directions on the appellant's association with other persons convicted of related offences - where appellant challenged learned trial judge's directions in relation to evidence of cash transactions - where appellant challenged general comments and observations made by learned trial judge - whether appellant deprived of a fair trial 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 - PARTICULAR OFFENCES - OTHER OFFENCES - where appellant sentenced to concurrent sentences of imprisonment including nine and a half years (production of cannabis), eight years (trafficking in cannabis), four years (possession of cannabis) and two years (possession of equipment used in connection with producing a dangerous drug) - where appellant involved in substantial criminal enterprise - where questions of parity arose because another accused involved in the enterprise was sentenced to eight years imprisonment on a charge of production of cannabis - whether leave should be granted and whether the sentence imposed was manifestly excessive or otherwise erroneous Criminal Code1899 (Qld), s 590A Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, cited MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, cited MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, cited R v Panichelli…