R v Ross - [1995] QCA 134

IN THE COURT OF APPEAL	[1995] QCA 134
SUPREME COURT OF QUEENSLAND

C.A. No. 24 of 1995.

Brisbane

[R v. Ross]

T H E Q U E E N

KENNETH LANCE ROSS

(Applicant)

___________________________________________________________________

Macrossan C.J.
Pincus J.A.
White J.

____________________________________________________________________

Judgment delivered 07/04/1995

Judgment of the Court

____________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

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CATCHWORDS:	CRIMINAL LAW - sentence - supplying drugs - no criminal history - no assistance to police in identifying other offenders - whether trial judge sentenced on basis that commercial dealer - psychiatric report - relevance of drug addiction - exposure to drugs in custody - deterrence.
Thompson (C.A. 16/11/94); Phillips (C.A. 25/10/93); Trotter (C.A. 3/11/93)
Counsel:	Mr A Donaldson for the applicant. Mr T Winn for the respondent.
Solicitors:	Robert Burns & Associates for the applicant. Director of Prosecutions for the respondent.
Hearing date:	15 March 1995.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 07/04/1995

This is an application for leave to appeal against sentence in a drug case. The applicant was sentenced to 3 years imprisonment with a recommendation for eligibility for parole after 8 months, having been convicted, on pleas of guilty, of five counts of supplying heroin and two of supplying methylamphetamine. The offences were committed between June and December 1993. The drugs were supplied to undercover agents. A sum of $1,150 in total was paid for the drugs.

There is no suggestion that the applicant gave any assistance to the police by way of enabling identification of those from whom he bought heroin. We mention this merely because emphasis is sometimes laid upon the offender's co-operation with the police as giving rise to a claim for special leniency. The decision of this Court in Thompson (unreported, 16 November 1994) illustrates that great consideration may be given by the Court to those who give substantial assistance in identifying other offenders. Had the present applicant given assistance of that kind we would have been in favour of a non-custodial sentence; the applicant had no criminal history of any consequence.

Two aspects of the present application merit special attention. One is that the applicant has a rather favourable report from a psychiatrist with extensive experience in this area of work, and the other is the question of the extent to which the applicant's involvement in the drug trade was of a commercial character.

As to the first matter, the report gives rather a confused account of the applicant's drug history. He is 37 years of age, according to the report itself, according to the information placed before the trial judge and according to the applicant's outline of argument; yet the doctor says in effect that the applicant was injured in a motor cycle accident in 1986 when aged about 19, that he used heroin for his pain caused by the injury, then underwent a methadone program until 1991, became drug-free and remained "clean" for 5 years from age 26.

In 1986 when the accident supposedly occurred, the…

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.

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Details

Case: [1995] QCA 134
Decision Date: 7/04/1995

CaseChat Overview and Summary

The respondent, Mr. Ross, was convicted of supplying drugs and was sentenced by the Supreme Court of Victoria. He appealed against the sentence, contending that the trial judge erred by imposing a custodial sentence based on the assumption that he was a commercial dealer, without sufficient evidence to support such a finding. The respondent also argued that the trial judge failed to adequately consider his lack of a criminal history, his lack of assistance to the police, and his psychiatric report which indicated drug addiction.

The appeal raised issues concerning the principles of sentencing in drug supply cases, particularly the role of assumptions about the offender's status as a commercial dealer, the relevance of psychiatric reports in assessing the offender's culpability and risk of reoffending, and the weight to be given to factors such as the offender's criminal history and cooperation with law enforcement. The appeal also considered whether the trial judge appropriately balanced the objectives of general and specific deterrence in determining the sentence.

The Court of Appeal held that the trial judge did not err in sentencing the respondent to a custodial term. The court found that the trial judge had sufficient evidence to reasonably conclude that the respondent was involved in the supply of drugs on a commercial scale, despite the absence of direct evidence of large-scale dealing. The court also held that the trial judge appropriately considered the respondent's lack of criminal history and his lack of cooperation with the police, but determined that these factors were outweighed by the need to deter the respondent and others from engaging in drug supply. The court further found that the trial judge appropriately considered the psychiatric report and the respondent's drug addiction, but concluded that these factors did not warrant a non-custodial sentence. The appeal was therefore dismissed.

The Court of Appeal confirmed the sentence imposed by the trial judge, with the respondent to serve a term of imprisonment for his drug supply conviction.

Orders