R v Rohlf - [2020] QCA 105

[2020] QCA 105

COURT OF APPEAL

FRASER JA
McMURDO JA
MULLINS JA

CA No 48 of 2020
SC No 1466 of 2019
SC No 308 of 2020

THE QUEEN

ROHLF, Andrew Grant Applicant

BRISBANE

THURSDAY, 21 MAY 2020

JUDGMENT

FRASER JA: On 10 March 2020 the applicant was convicted on his pleas of guilty to possession of a dangerous drug, methylamphetamine, in excess of two grams (count 1) and possession of weapons, category R (count 2). On count 1, he was sentenced to 18 months’ imprisonment, with parole fixed on 10 June 2020. He was convicted and not further punished for count 2 and two summary drug offences. The applicant seeks leave to appeal against sentence on the grounds that the sentencing judge erred in failing to give full credit for the non-declarable period of pre-sentence custody and by concluding that a cumulative sentence nominally should be imposed on count 2.

In the course of execution of a search warrant at the house where the applicant and his co-accused resided, police stopped the co-accused from flushing in a toilet about 13 grams of substance containing about 10 grams of pure methylamphetamine whilst the applicant was acting as a lookout. A clipseal bag of substance found to contain 0.263 grams of the drug was found in the house. Police also found two taser torches, a used glass pipe and digital scales. The applicant admitted that the drugs and other items belonged to him. He was sentenced upon the basis that he possessed the drugs for his personal use only.

The applicant has a criminal history. Most of his convictions were for relatively minor offences. In addition, he had been sentenced to 12 months’ imprisonment with immediate parole after 59 days in pre-sentence custody for offences including dangerous operation of a vehicle in March 2013. As a result of breaching a 12-month probation order imposed in July 2016, he was resentenced in December 2017 to one month and seven days’ imprisonment with immediate parole for offences including contravention of a domestic violence order. In March 2018 he was fined for possession of a quantity of MDMA capsules and a glass pipe. The applicant was 39 when he committed the offences. He had been in employment since he completed his secondary schooling and had some casual work at the time of the offences.

At the sentence hearing the Crown submitted that if, as occurred, the sentencing judge did not accept that the applicant possessed the drug for a commercial purpose, the sentence should be in the order of 18 months’ imprisonment. Defence counsel submitted that such a sentence was within range, in the ordinary course the applicant would serve six months of that sentence, and he had already served more than that in pre-sentence custody.

The sentencing judge took into account the applicant’s timely plea of guilty, his considerable criminal history containing one relatively minor drug offence, and that although the drugs were for personal use there was a lot of drug…

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 Rohlf

Details

AGLC: R v Rohlf [2020] QCA 105
Case: [2020] QCA 105
Decision Date: 21 MAY 2020

CaseChat Overview and Summary

The Court of Appeal heard an application for leave to appeal against sentence by Andrew Grant Rohlf, who was convicted of possession of a dangerous drug, methylamphetamine, in excess of two grams, and possession of weapons, category R. Rohlf sought leave to appeal on the grounds that the sentencing judge erred in failing to give full credit for the non-declarable period of pre-sentence custody and by concluding that a cumulative sentence nominally should be imposed on count 2. The appeal was allowed and the sentence was varied. The central legal issues revolved around the appropriate consideration of the non-declarable period of pre-sentence custody and the imposition of a cumulative sentence on count 2. The sentencing judge had considered the applicant's timely plea of guilty, his criminal history, and the quantity and purity of the drug. The judge applied the totality principle and imposed a sentence of 26 months, with a parole release date of 10 June 2020. Rohlf argued that the sentencing judge should have taken into account the four-month period of pre-sentence custody relating to domestic violence and assault offences, which were committed in the same period and arose out of the same circumstances as the subject offences. The court found that the sentencing judge's reasons for not making an allowance for this period of pre-sentence custody were not supported by the material. The court granted the application for leave to appeal, allowed the appeal, and varied the sentence by substituting for the parole release date fixed by the sentencing judge of 10 June 2020 a parole release date of 21 May 2020.

Orders