R v Kleinschmidt - [1995] QCA 541

[1995] QCA 541

COURT OF APPEAL

PINCUS JA
LEE J
MACKENZIE J

CA No 363 of 1995

THE QUEEN

KENNETH JOHN KLEINSCHMIDT Applicant

BRISBANE

..DATE 05/10/95

JUDGMENT

MACKENZIE J: The applicant who was 28 years of age at the time of the conviction was convicted of 10 counts of supplying a dangerous drug, five of possession of a dangerous drug, three of unlawfully using a motor vehicle with circumstances of aggravation namely wilful damage, and one offence of stealing.

He was sentenced on the counts of supply to four and a half years imprisonment, on the counts of possession six months imprisonment, on the unlawful using charges for two years, and on the stealing six months.

He was given an effective head sentence of four and a half years imprisonment and a non parole period of 18 months was prescribed. There was also a recommendation for treatment for drug addiction.

The applicant had a criminal history which commenced in 1987 and included convictions for possession of a dangerous drug and for unlawful use of motor vehicles. At the time of the sentence he was serving a sentence for six counts of unlawful use and multiple property offences but the present sentences were made concurrent with that.

The circumstances of the offences were that the detection of the offences occurred during a covert police operation. An agent was supplied by the applicant with heroin on 10 occasions over a two month period. The total amount was 2.892 grams of pure heroin and the sum that changed hands was $6,535.

The pattern was that the agent would drive the applicant to a house at Riverview where money would be given to the applicant. He would go into a house and apparently make arrangements which resulted in the agent going to a place where the drug was handed over.

On four of the occasions the applicant was seen to take a taste of the heroin for himself and on some occasions he injected himself with it in the agent's car. He pleaded guilty to possession of the drug in respect of those instances.

There was also one supply of amphetamines to which the other plea of guilty to a possession charge relates. It was accepted by the Crown that the applicant was a heroin addict and made no monetary gain from the transactions. The three counts of unlawful use with circumstances of aggravation all occurred on the one day, 22 November 1994.

The record discloses that in the environment in which the applicant and the agent were the talk got around to stolen motor vehicles and it was out of that that the three transactions relating to unlawful use occurred. Money changed hands in respect of the first instance, namely $500. A payment of $1,000 was agreed in respect of the other and there was also a third vehicle in respect of which arrangements were made that it would be supplied to the agent. The counts of stealing related to property removed…

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 Kleinschmidt

Details

AGLC: R v Kleinschmidt [1995] QCA 541
Case: [1995] QCA 541
Decision Date: 5 October 1995

CaseChat Overview and Summary

The case of R v Kleinschmidt was heard in the Queensland Court of Appeal, with Pincus JA, Lee J, and Mackenzie JCA presiding. The applicant, Kenneth John Kleinschmidt, appealed against his sentence, which was handed down after he was convicted of multiple drug-related offences and other crimes. The applicant was sentenced to a total of four and a half years imprisonment, with a non-parole period of 18 months. The applicant's appeal focused on the length of the non-parole period, which he argued should be shorter to allow for greater opportunity for rehabilitation.

The legal issue before the court was whether the non-parole period of 18 months for the applicant's head sentence of four and a half years was manifestly excessive. The court considered the nature and volume of the applicant's offences, his criminal history, and mitigating factors such as his efforts to overcome his heroin addiction and his stable family background. The court also considered the impact of the applicant's drug supply on others, the high grade of the heroin involved, and the fact that the offences were not isolated incidents.

The Court of Appeal found that the non-parole period of 18 months for a head sentence of four and a half years was not manifestly excessive, given the nature and volume of the offences. While some courts may consider a shorter non-parole period in similar circumstances, the Court of Appeal was not convinced that the sentence was excessive in this case. The appeal was therefore refused.

In summary, the Queensland Court of Appeal upheld the applicant's sentence of four and a half years imprisonment with a non-parole period of 18 months, rejecting his appeal against the length of the non-parole period. The court considered the nature and volume of the offences, the applicant's criminal history, and mitigating factors such as his efforts to overcome his heroin addiction, before concluding that the sentence was not manifestly excessive.

Orders