R v Klasan - [2007] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

R v Klasan [2007] QCA 268

PARTIES:

R
v
KLASAN, Gordon
(applicant)

FILE NO/S:

CA No 121 of 2007
SC No 336 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2007

JUDGES:

de Jersey CJ, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where applicant pleaded guilty to trafficking in cocaine and ecstasy and sentenced to 11 years imprisonment – where sentencing Judge heard evidence to determine disputed matters of fact and expressed findings – where matters in dispute included scale of the trafficking and extent of applicant’s involvement – whether relevant findings of sentencing Judge reasonably open and correct onus and standard of proof applied – whether sentence imposed manifestly excessive

Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 161A

R v Bradforth[2003] QCA 183; CA No 423 of 2002, 9 May 2003, considered
R v Raciti[2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered

COUNSEL:

M J Byrne QC, with J A Greggery, for the applicant
B G Campbell for the respondent

SOLICITORS:

Anderson Telford Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: On 1 May 2007 the applicant pleaded guilty to carrying on the business of unlawfully trafficking in cocaine and ecstasy at Brisbane and elsewhere in Queensland between 1 May 2002 and 27 September 2002. The applicant was aged 35-36 years at the time of offending, and was 40 years of age at the time of sentence. He had no prior criminal history.

On 2 and 3 May 2007 the learned sentencing Judge heard evidence adduced by the prosecution, in the form of the recordings of numerous telephone calls, in order to determine disputed matters of fact. The applicant did not give or call evidence. The Judge then expressed his findings.

On the basis of those findings, the prosecutor submitted for a range of 10 to 12 years imprisonment. Counsel for the applicant did not dispute that range, although he urged that the Judge sentence at its lower level. The learned Judge imposed a sentence of 11 years imprisonment, and that, by s 161A(a) of the Penalties and Sentences Act 1992 (Qld), meant the applicant was convicted of a serious violent offence.

In contending that the 11 years term is manifestly excessive, the applicant now challenges two of the findings made by the Judge, as emerges from these amended grounds of appeal:

“(a)The learned sentencing Judge erred in finding that the references ‘20, 20, 20’ on the telephone call of 9…

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 Klasan

Details

AGLC: R v Klasan [2007] QCA 268
Case: [2007] QCA 268
Decision Date: 17 August 2007

CaseChat Overview and Summary

The case of R v Klasan involves the applicant who pleaded guilty to trafficking in cocaine and ecstasy and was subsequently sentenced to 11 years imprisonment by the sentencing Judge. The applicant sought leave to appeal against the sentence, arguing that the findings made by the sentencing Judge regarding the disputed matters of fact were not reasonably open, and that the sentence imposed was manifestly excessive. The appeal was heard in the higher court.

The primary legal issues the court had to address were whether the relevant findings of the sentencing Judge were reasonably open, taking into account the correct onus and standard of proof, and whether the sentence imposed was manifestly excessive. The court had to carefully consider the evidence presented during the sentencing hearing, assess the credibility of the witnesses, and determine whether the findings made by the sentencing Judge were reasonable and supported by the evidence.

The court examined the evidence presented during the sentencing hearing and assessed the credibility of the witnesses. The court found that the sentencing Judge had heard evidence to determine disputed matters of fact, such as the scale of the trafficking and the extent of the applicant's involvement. The court concluded that the matters in dispute were properly before the sentencing Judge, and that the findings made by the Judge were reasonably open and supported by the evidence. The court also found that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed.

The court dismissed the application for leave to appeal against the sentence. The applicant was not granted leave to appeal the sentence imposed by the sentencing Judge, and the 11-year imprisonment sentence remains in place. The findings made by the sentencing Judge were upheld, and the court determined that the sentence was not manifestly excessive.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Klasan [2007] QCA 268
PARTIES:	R v KLASAN, Gordon (applicant)
FILE NO/S:	CA No 121 of 2007 SC No 336 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2007
JUDGES:	de Jersey CJ, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where applicant pleaded guilty to trafficking in cocaine and ecstasy and sentenced to 11 years imprisonment – where sentencing Judge heard evidence to determine disputed matters of fact and expressed findings – where matters in dispute included scale of the trafficking and extent of applicant’s involvement – whether relevant findings of sentencing Judge reasonably open and correct onus and standard of proof applied – whether sentence imposed manifestly excessive Evidence Act 1977 (Qld), s 132C Penalties and Sentences Act 1992 (Qld), s 161A R v Bradforth[2003] QCA 183; CA No 423 of 2002, 9 May 2003, considered R v Raciti[2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered
COUNSEL:	M J Byrne QC, with J A Greggery, for the applicant B G Campbell for the respondent
SOLICITORS:	Anderson Telford Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent