R v Michalas - [2007] QCA 38

SUPREME COURT OF QUEENSLAND

CITATION:

R v Michalas [2007] QCA 38

PARTIES:

R
v
MICHALAS, Adam
(applicant)

FILE NO/S:

CA No 349 of 2006
SC No 495 of 2006
SC No 912 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

13 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2007

JUDGES:

de Jersey CJ, Jerrard JA and Holmes JA

ORDER:

The application is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where applicant convicted of possession and supply of methylamphetamine, receiving stolen property and other offences – where applicant re-offended while subject to notices to appear – where applicant received stolen property to aid feeding of drug addiction – whether sentence imposed was manifestly excessive

R v de Carteret[2006] QCA 279, CA No 114 of 2006, 4 August 2006, followed
R v Wynyard[2004] QCA 431, CA No 296 of 2004, 12 November 2004, followed

COUNSEL:

A J Kimmins for the applicant
M J Copley for the respondent

SOLICITORS:

Ryan & Bosscher, Toowoomba for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The applicant seeks leave to appeal against a sentence of two and a-half years imprisonment with parole after 10 months imposed on each of two counts of possession and supply respectively of methylamphetamine on the 28th of October 2005, and on each of three counts of receiving stolen property, being two lap-top computers and one global positioning system unit, between September and October 2005.

He also pleaded guilty to other offences, being the possession of methylamphetamine on the 5th of October 2005, the possession of scales and tainted money on the 28th of October 2005 and receiving a set of keys between August and October 2005, and he was sentenced to concurrent 12 month terms with parole after 4 months in respect of those counts.

The present application relates to the longer term, two and a-half years imprisonment with parole after 10 months which he submits was manifestly excessive.

At the time of the offences the applicant was 26 years of age. His prior convictions were for possession of house-breaking implements in 1997 for which no penalty was imposed, for breaking and entering and wilful damage in 1997 which attracted two years probation and for a break and enter in 1996 for which, in February 2006, he was fined.
On the 5th of October 2005 a police search of the applicant's unit uncovered 1.39 grams of powder which included .477 grams of methylamphetamine, together with three Clipseal bags.

The police then located the keys, the computers and the GPS unit which were together valued at $2,940. The police issued the applicant with notices to appear. Twenty-three days later, while subject to those notices to appear, the applicant committed further offences…

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 Michalas

Details

AGLC: R v Michalas [2007] QCA 38
Case: [2007] QCA 38
Decision Date: 13 February 2007

CaseChat Overview and Summary

The case of R v Michalas involved the applicant, Michalas, who had been convicted of several criminal offences, including possession and supply of methylamphetamine, receiving stolen property, and other related charges. The applicant appealed against the sentence imposed by the lower court, arguing that it was manifestly excessive. The appeal was heard by the Supreme Court of the relevant jurisdiction. The key legal issue before the court was whether the sentence imposed was so disproportionate to the crimes committed that it warranted a reduction or reconsideration. The court had to balance the gravity of the offences, the applicant's criminal history, and the principles of sentencing against the argument that the sentence was excessively harsh.

The court examined the nature and circumstances of the offences, noting the significant criminal activity involved, including the supply of dangerous drugs and the receipt of stolen property to fund a drug addiction. It also considered the applicant's prior criminal record and the fact that he had re-offended while subject to notices to appear. The court highlighted that the applicant's actions demonstrated a persistent pattern of criminal behaviour, which warranted a substantial penalty. The severity of the imposed sentence was deemed necessary to reflect the seriousness of the crimes and to serve as a deterrent against future offending. The court concluded that the sentence was not manifestly excessive and therefore denied the application to reduce the sentence.

Given the findings, the court upheld the original sentence. The reasoning provided underscored the importance of maintaining appropriate penalties for serious criminal conduct and ensuring that sentences reflect the gravity of the offences. The applicant's appeal was thus refused, and the original sentence remained in place. This decision reinforces the principle that courts must carefully consider the proportionality of sentences while also taking into account the broader implications of criminal behaviour on society.

Orders

Orders of the court

The application is 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 Michalas [2007] QCA 38
PARTIES:	R v MICHALAS, Adam (applicant)
FILE NO/S:	CA No 349 of 2006 SC No 495 of 2006 SC No 912 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	13 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2007
JUDGES:	de Jersey CJ, Jerrard JA and Holmes JA
ORDER:	The application is refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where applicant convicted of possession and supply of methylamphetamine, receiving stolen property and other offences – where applicant re-offended while subject to notices to appear – where applicant received stolen property to aid feeding of drug addiction – whether sentence imposed was manifestly excessive R v de Carteret[2006] QCA 279, CA No 114 of 2006, 4 August 2006, followed R v Wynyard[2004] QCA 431, CA No 296 of 2004, 12 November 2004, followed
COUNSEL:	A J Kimmins for the applicant M J Copley for the respondent
SOLICITORS:	Ryan & Bosscher, Toowoomba for the applicant Director of Public Prosecutions (Queensland) for the respondent