R v Kovacs - [2009] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kovacs [2009] QCA 52

PARTIES:

R
v
KOVACS, Gabor
(applicant)

FILE NO/S:

CA No 295 of 2008
SC No 732 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2009

JUDGES:

Keane, Muir and Fraser 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 – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted by jury of supplying cocaine – where applicant has significant drug-related criminal history – where applicant suffers drug addiction and depressive disorder – where applicant cooperated with authorities – where no supply of cocaine to ultimate user – whether sentence manifestly excessive

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Cooney [2004] QCA 244, cited
R v Glynn, unreported, Court of Criminal Appeal, CA No 28 of 1990, 10 April 1990, cited
R v Thompson (1994) 76 A Crim R 75; [1994] QCA 393, cited

COUNSEL:

A J Kimmins, with Y Chekirova, for the applicant
P F Rutledge for the respondent

SOLICITORS:

Bell Miller for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA:
On 16 October 2008 the applicant was convicted upon the verdict of a jury of one count of supplying the dangerous drug cocaine. He had earlier pleaded guilty to one count of unlawful possession of the dangerous drug heroin in a quantity in excess of two grams and one count of unlawful possession of the dangerous drug cannabis sativa. The applicant was sentenced to six years imprisonment for the offence of supplying cocaine and to concurrent terms of three years imprisonment in respect of the other offences. A period of 15 days was declared as pre-sentence custody. The applicant's parole eligibility date was set at

1 April 2011.

A notice of appeal was filed in relation to the conviction and sentence in respect of the offence of supplying cocaine. In that notice of appeal, no basis was articulated for challenging the sentence if the conviction were to be upheld. The only basis on which the conviction was challenged was stated as follows:

"the conviction be set aside and new trial ordered on the grounds that fresh evidence is now available namely a statement from Ion Arzoc who claims he was the person who had possession and control of the said drugs and that there is a significant possibility that a jury acting reasonably would acquit the appellant."

The appeal against conviction has been abandoned, but the applicant has pursued his application for leave to appeal against the severity of his sentence for the cocaine offence.

Circumstances of the offences

The offence of supplying cocaine was alleged by the Crown…

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 Kovacs

Details

AGLC: R v Kovacs [2009] QCA 52
Case: [2009] QCA 52
Decision Date: 13 March 2009

CaseChat Overview and Summary

The case of R v Kovacs involves the applicant who was convicted by a jury of supplying cocaine. The applicant has a substantial history of drug-related criminal activity and suffers from drug addiction and depressive disorder. Despite this, the applicant cooperated with authorities and did not supply cocaine directly to the ultimate user. The applicant appealed against the severity of the sentence imposed, arguing it was manifestly excessive. The appeal was brought before the court which had to determine whether the sentence imposed was indeed manifestly excessive or inadequate in the circumstances.

The legal issues before the court revolved around whether the sentence imposed was manifestly excessive, taking into account the applicant's criminal history, his cooperation with authorities, his personal circumstances including his drug addiction and depressive disorder, and the fact that he did not directly supply the cocaine to the ultimate user. The court had to weigh these factors against the severity of the sentence and assess whether it was proportionate and appropriate under the circumstances.

The court considered the applicant's extensive criminal history and the nature of the offence, but also noted the mitigating factors including the applicant's cooperation with authorities and his personal circumstances. The court found that while the applicant's history and the offence were serious, the sentence imposed was not so excessive as to warrant interference. The court concluded that the sentence was proportionate and appropriate given all the circumstances of the case, and therefore, the application for leave to appeal against the sentence was refused.

The final orders of the court were to refuse the applicant's application for leave to appeal against the sentence. This decision affirmed the original sentence imposed on the applicant, indicating that the court found the sentence to be appropriate and proportionate in light of all the circumstances presented.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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 Kovacs [2009] QCA 52
PARTIES:	R v KOVACS, Gabor (applicant)
FILE NO/S:	CA No 295 of 2008 SC No 732 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2009
JUDGES:	Keane, Muir and Fraser 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 – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted by jury of supplying cocaine – where applicant has significant drug-related criminal history – where applicant suffers drug addiction and depressive disorder – where applicant cooperated with authorities – where no supply of cocaine to ultimate user – whether sentence manifestly excessive Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Cooney [2004] QCA 244, cited R v Glynn, unreported, Court of Criminal Appeal, CA No 28 of 1990, 10 April 1990, cited R v Thompson (1994) 76 A Crim R 75; [1994] QCA 393, cited
COUNSEL:	A J Kimmins, with Y Chekirova, for the applicant P F Rutledge for the respondent
SOLICITORS:	Bell Miller for the applicant Director of Public Prosecutions (Queensland) for the respondent