R v Mikula

Case [2015] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mikula [2015] QCA 102

PARTIES:

R
v
MIKULA, Kyell Colin
(applicant)

FILE NO/S:

CA No 337 of 2014
SC No 21 of 2014
SC No 52 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Townsville – Unreported, 27 November 2014

DELIVERED ON:

16 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2015

JUDGES:

Margaret McMurdo P and Holmes and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to trafficking dangerous drugs; possession of methylamphetamine; two counts of possession of cannabis; possession of methandienone; possession of testosterone; possession of alprazolam; knowingly possessing money obtained from trafficking in dangerous drugs; receiving stolen property and a number of summary offences – where the applicant was sentenced to four years imprisonment suspended after 16 months with an operational period of four years – where the applicant contends that the trial judge erred in sentencing him on the basis that his level of trafficking was for commercial gain – where the applicant contends that he was a street level dealer and also a heavy drug user and the purpose of his trafficking was to supply himself and his friends and acquaintances with drugs – where the applicant also contends that mitigating factors including his rehabilitation, excellent work history and relative youth warranted an earlier suspension of the sentence – whether the sentence was manifestly excessive

Health (Drugs and Poisons) Regulation 1996 (Qld), s 204

R v Burge[2004] QCA 161, cited
R v Challacombe [2009] QCA 314, cited
R v C’Ward[2014] QCA 15, cited
R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, cited
R v Mullins[2007] QCA 418, cited
R v Taylor [2005] QCA 379, cited

COUNSEL:

V Keegan for the applicant
J P Phillips for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  The applicant, Kyell Mikula, pleaded guilty on 16 September 2014 to trafficking in dangerous drugs between 18 March and 15 December 2012 (count 1); possession of methylamphetamine on 14 December 2012 (count 2); possession of cannabis on 14 December 2012 (count 3); possession of methandienone on 14 December 2012 (count 4); possession of testosterone on 14 December 2012 (count 5); possession of alprazolam on 14 December 2012 (count 6); knowingly possessing money obtained from trafficking in dangerous drugs on 14 December 2012 (count 7); receiving stolen property, namely an electronic device, between 11 May and 15 December 2012 (count 8); and possession of cannabis on 10 January 2013 (count 9).  He also pleaded guilty to the following summary offences: possession of a Category…

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Details
AGLC
R v Mikula [2015] QCA 102
Case
[2015] QCA 102
Decision Date

CaseChat Overview and Summary

The applicant in the case of R v Mikula appealed against his sentence in the Supreme Court of Queensland, challenging the decision on the grounds that it was manifestly excessive or inadequate. The applicant, who had a minor criminal history, pleaded guilty to a range of drug-related offences including trafficking dangerous drugs, possession of methylamphetamine, possession of cannabis, possession of methandienone, possession of testosterone, possession of alprazolam, knowingly possessing money obtained from trafficking in dangerous drugs, receiving stolen property, and a number of summary offences. He was sentenced to a four-year imprisonment term, suspended after 16 months, with an operational period of four years. The applicant argued that the trial judge erred in sentencing him, claiming that his level of trafficking was not for commercial gain but for personal use and to supply friends and acquaintances. He also argued that mitigating factors, such as his rehabilitation, excellent work history, and relative youth, warranted an earlier suspension of the sentence.

The court considered the applicant's arguments and found that the judge was entitled to conclude that the applicant was engaged in trafficking the drugs for commercial reward. The court noted that the applicant's diary contained more than 17 names and phone numbers and recorded amounts ranging from $50 to five-figure amounts, which supported the judge's finding. The court also found that the applicant's contention that the judge erred in finding he was trafficking for commercial gain was not made out. The court acknowledged that there were many mitigating features in the case, such as the applicant's young age at the time of offending, his dysfunctional relationship, his loving upbringing, and his rehabilitation efforts since his arrest. However, the court concluded that the sentence imposed was at the top end of the appropriate range in light of the mitigating features and that the applicant had not demonstrated that the sentence was manifestly excessive.

The court held that the application for leave to appeal against sentence must be refused. McMurdo P, with whom Holmes JA and Morrison JA agreed, found that the applicant's trafficking over a nine-month period was broadly comparable in seriousness to that in McAway and Taylor, where similar sentences were imposed. The court found that the appropriate range in this case was a head sentence of between three and four years with parole eligibility at or slightly earlier than one third. Although a more lenient penalty could have been imposed, the applicant had not demonstrated that the sentence was manifestly excessive. The court's final order was that the application for leave to appeal against sentence is refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

The applicant was 22 and 23 years old at the time of his offending and 25 at sentence. He had a minor criminal history. In January 2012 he was fined without conviction for an assortment of minor drug offences. In December that year, he was dealt with without conviction and not further punished for failing to appear in accordance with an undertaking on 7 November 2012.The facts of the offending The facts of his offending were set out in a schedule tendered by the prosecutor at sentence.[1][1]Exhibit 2. On 14 December 2012 police executed a search warrant at the applicant’s home. They detained and cautioned him and invited him to declare any illegal items. He produced a bong, cannabis, a coffee grinder and two glass smoking pipes. He showed them his bedroom off the lounge area and admitted that he was the sole occupier of the house. Police took possession of relevant items before taking him to the watch house and issuing him with a notice to appear. On 10 January 2013 police executed a second search warrant at his home and located a number of illegal items. He was again taken to the watch house and issued with a notice to appear. On neither occasion did he participate in an interview with police. Between 18 March and 15 December 2012 the applicant sent and received messages relating to the supply of methylamphetamine and cannabis. On 14 December police found those drugs in his possession for the purpose of trafficking. He also had possession of scales, a grinder, clip seal plastic bags and a cryovac machine for use in the business. He recorded the amounts of drugs sold and the names of those to whom he sold them in a diary and a note book. The diary contained 17 names and phone numbers. Police found $1,160 in his possession. Photographs on his camera depicted sums of money in $50 and $100 denominations (count 1). Police found a glass container of white crystalline substance later analysed as weighing 43.294 grams and containing 1.961 grams of methylamphetamine (count 2). Police found green leafy material in a plastic container under the kitchen sink and in a bag in a bedroom cupboard. This was later analysed as cannabis weighing of 105 grams (count 3). Police found a 50 millilitre bottle labelled “anadrol”. On analysis it was found to contain 45.929 grams of methandienone (count 4). Police found a bottle labelled “Sustanon 250” containing about 10 millilitres of a light yellow, oily liquid and a 10 millilitre vial labelled “Shanghai Labs TE250 Testosterone Enanthate.” Analysis showed the substances contained testosterone (count 5). In a locked safe in the bedroom police found three pink tablets marked “OM/30” on one side and “G” on the other. On analysis they contained oxazepam (count 6). Police found $660 in a black wallet in the bedroom cupboard and $500 in the locked safe (count 7). On 15 April 2012 the complainant in count 8 reported that his Apple ipad was missing from his home. On 14 December 2014, police found it in the locked safe in the main bedroom of the applicant’s house (count 8).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s present counsel emphasises the applicant’s rehabilitation over the past two years and his toxic relationship at the time of his offending, something confirmed in the reference from the applicant’s aunt who was a solicitor and senior associate in a law firm. He was well regarded by his past and present employers who were aware of his offending. Whilst the four year head sentence was not manifestly excessive, the combined mitigating factors warranted a much earlier suspension of the sentence after nine to 12 months rather than 16 months, as in R v Burge.[9][9][2004] QCA 161.Conclusion The notes in the applicant’s diary contained more than 17 names and phone numbers and recorded amounts ranging from $50 to five figure amounts. It was unclear which related to cannabis and which to methylamphetamine but the judge was entitled to find that the applicant was clearly engaged in trafficking those drugs for commercial reward. This was not inconsistent with him being in debt when arrested by police so that ultimately he did not profit from his illegal business. Nor was it inconsistent with him supplying acquaintances and having a heavy personal drugs use. This conclusion was supported by the applicant’s guilty plea, the tendered schedule of facts, the notes in his diary and the submissions made on his behalf by experienced counsel. The applicant’s contention that the judge erred in finding he was trafficking for commercial gain is not made out. His trafficking over a nine month period was broadly comparable in seriousness to that in McAway where a five year sentence with parole eligibility after 18 months was imposed, and Taylor where a five year sentence suspended after two years with an operational period of five years was imposed. It is true that in the present case there were many mitigating features. The applicant was relatively young when he offended and did so at a time when he was in a dysfunctional relationship and living a lifestyle which was atypical. He had a loving upbringing and since his arrest he stopped taking drugs, obtained employment and rehabilitated. He has an excellent work history, a supportive and caring family and has been drug free since his arrest. He has made commendable efforts at rehabilitation, co-operated with the authorities and pleaded guilty at an early time. A review of the cases relied on by the parties as comparable suggests the appropriate range in this case was a head sentence of between three and four years with parole eligibility at or slightly earlier than one third. The sentence imposed was at the top end of that range in light of the mitigating features. Although a more lenient penalty could have been imposed, the applicant has not demonstrated that the sentence was manifestly excessive. It follows that the application for leave to appeal against sentence must be refused. HOLMES JA: I agree with the reasons of Margaret McMurdo P and the order she proposes. MORRISON JA: I have had the advantage of reading the draft reasons of McMurdo P. I agree with those reasons and the order her Honour proposes.

Ratio Decidendi

Legal Principle Established

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