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

v.

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 from the stolen vehicles.

The matters taken into account by the sentencing Judge were the significant number of drug offences and that they extended over a period of time.  It was accepted that the applicant had a significant heroin addiction and that that was the key to his offending.

He took into account in favour of the applicant that he had made a significant effort to overcome his addiction, that he had a good employment record and that he came from a stable family unit.

As against that the sentencing Judge took into account that supplying other people would have the same effect on them as on the applicant, that the heroin was of high grade and that they were not isolated offences and the criminal history.

There was no complaint made about the head sentence of four and a half years.  What the applicant has submitted is that he would have more opportunity to engage in rehabilitation if he were to be given a lesser non parole period. 

The sentence of four and a half years with an 18 month non parole period effects a significant discount in itself.  It is in my view clearly within range.  It may be that the submissions that were made as to a shorter non parole period may find favour with some Courts however it seems to me that where we are concerned with the question of whether the sentence is manifestly excessive or not I am unable to conclude that a non parole period of 18 months for a head sentence of four and a half years given the nature and the volume of the offences is manifestly excessive.

I would therefore refuse the application.

PINCUS JA:  I agree.

LEE J:  I agree.

PINCUS JA:  The application is refused.

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