R v Kleimeyer - [2018] QCA 9

[2018] QCA 9

COURT OF APPEAL

SOFRONOFF P
MORRISON JA
PHILIPPIDES JA

CA No 229 of 2017
DC No 730 of 2017

THE QUEEN

KLEIMEYER, Matthew Dale Applicant

BRISBANE

TUESDAY, 13 FEBRUARY 2018

JUDGMENT

SOFRONOFF P: The applicant was in his late twenties and thirties when he committed the offences for which he was sentenced. Between July 2012 and January 2015, he committed 35 offences with which he was charged on indictment. There were also three summary offences for which he was sentenced, but it is not necessary to refer to these further.

Of the 35 offences, 23 related to actual supply of dangerous drugs. Twelve constituted an offer to supply. Of the 35 offences, 26 related to the supply of cannabis, two related to the supply of ecstasy, and seven of the other supplies related to drugs that could not be identified on the evidence led by the prosecution. The quantities of drugs supplied were not large. They were supplied in each case to the applicant’s flatmate. The applicant charged for each such supply, but the amounts that he received were relatively small, and it was not suggested that he was making any profit.

References to his good character were tendered. He had no previous criminal history. It was submitted on his behalf that since he was charged, he has ceased using drugs and that urinalysis testing supported that submission. The learned sentencing judge accepted that that was so. The applicant had married and others whose evidence was led on sentence spoke of him as a man of good character. The learned sentencing judge, Lynch DCJ, accepted that the applicant constituted a low risk of reoffending. His Honour also accepted that the applicant’s plea of guilty was indicative of real remorse on his part.

His Honour was aware, as was submitted on behalf of the applicant, that the applicant’s conviction for the offences to which he had pleaded guilty, if convictions were recorded, would have an effect upon his intended career in commercial aviation. At the time that he committed the latest of these offences the applicant was studying to achieve his goal of obtaining a university degree in aviation.

His Honour imposed a sentence of 12 months imprisonment in respect of each of counts 1 to 35. All of the sentences were to be served concurrently. All of the sentences were to be suspended immediately for an operational period of two years. In respect of the summary offences, the applicant was convicted but not further punished. All of the convictions were recorded.

It was submitted on this application that his Honour appeared to be unaware that one of the options that was open to him upon the facts of this case was a community-based order. That submission was based upon a submission made at first instance by the prosecutor that the applicant’s counsel had not referred to any authority that would support such an order. His Honour identified as a crucial question before him whether a period…

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 Kleimeyer

Details

AGLC: R v Kleimeyer [2018] QCA 9
Case: [2018] QCA 9
Decision Date: 13 FEBRUARY 2018

CaseChat Overview and Summary

The case of R v Kleimeyer was heard by the Court of Appeal in Queensland, where Matthew Dale Kleimeyer sought to appeal his conviction and sentence for 35 drug supply-related offences. The primary issue before the court was whether the sentencing judge erred in imposing a suspended sentence of imprisonment, which resulted in a recorded conviction, given the nature of the offences. The applicant argued that the judge did not consider a community-based order as an alternative, which could have avoided a recorded conviction.

The court examined the evidence of the applicant's conduct, which included text messages demonstrating a commercial relationship with the recipient of the drugs, contrary to the applicant's claims of social supply. The judges found that the supply of drugs was a calculated course of conduct, rather than spontaneous acts in social circumstances, and that the nature of the offending warranted a sentence involving a period of imprisonment. The court emphasised the importance of deterrence in drug supply cases, aligning with the principle that those involved in such activities must understand the potential consequences, including the risk of imprisonment and a recorded conviction.

The Court of Appeal concluded that the sentencing judge was correct in imposing a suspended sentence of imprisonment and recording a conviction. The judges highlighted the seriousness of the applicant's offending and the need to mark such serious offences with a conviction. Consequently, the appeal was dismissed, with all judges agreeing that the original sentence was appropriate given the circumstances.

Orders