R v Scherer

[1994] QCA 377

IN THE COURT OF APPEAL [1994] QCA 377

SUPREME COURT OF QUEENSLAND

C.A. No. 270 of 1993

Brisbane

[R. v. Scherer]

T H E Q U E E N

v.

NOAH MADHU SCHERER

(Appellant)

Davies JA Pincus JA Cullinane J

Judgment delivered 23/09/1994

Judgment of the Court

APPEAL AGAINST CONVICTIONS DISMISSED. LEAVE TO APPEAL IN

RESPECT OF THE SENTENCES IMPOSED IS REFUSED.

CATCHWORDS:	CRIMINAL LAW - Drugs Misuse Act - Weapons Act - Accused convicted of possessing unlicensed firearms and of possessing other equipment being the proceeds of drug offences - Whether convictions unsafe and unsatisfactory - Whether sentences are manifestly excessive.
Counsel:	No representation for Appellant J Henry for Respondent
Solicitors:	No representation for Appellant

Director of Prosecutions for Respondent

Hearing Date: 16 September, 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23/09/1994

The Appellant, who did not appear in the hearing of the

Appeal, appeals against his conviction in the Magistrates Court

at Mareeba of an offence of possession of the sum of $5,000, being reasonably suspected of being the proceeds of an offence

defined in Part 2 of the Drugs Misuse Act 1986 (as amended) and

possession of various items of property reasonably suspected of

having been acquired with the proceeds of an offence defined in

Part 2 of that Act. The first of these offences is provided for

in s.10A(1)(b) and the second in s.10A(1)(e) of the Act.

He seeks leave to appeal against the sentences imposed for

those offences and also in respect of three charges under the

Weapons Act to which he pleaded guilty. These were two counts

of possession of an unlicensed firearm and one count of

possession of a weapon in a manner likely to cause alarm.

All of the offences were alleged to have been committed on

30 January, 1993.

The Appellant sought an adjournment of these matters when

they became before the Magistrates Court on 3 June, 1994 which

is the day which they were dealt with. This was refused but is

not the subject of any ground of appeal.

The circumstances under which the charges arose involved a raid by police on a property at what I infer is a fairly remote area described as Silver Valley. According to a police officer, Gordon, when he and other police arrived they located a number

of men at the property and commenced to search for another person who had been seen running away. Whilst this search was

going on a number of shots were heard and when Gordon went to

the area where the shots were coming from he saw the appellant

standing with his hands in the air and a number of officers approaching him with firearms pointed at him. A search was made of his person during which $5,000 in $100 Australian bank notes were found. This property is the subject of the first charge referred to. In addition a syringe and a quantity of white powder in a black plastic container, a quantity of white tablets

in a plastic bag and some other property were found. It appears

that the appellant was living in a caravan with an annexe and

that there was nearby another caravan used as a storage area.

The various items of property, the subject of the second charge were found in and about these two caravans. This property consists of generators, pumps, ammunition and other items. Gordon swore to having found in the possession of the Appellant,

a large white plastic drum which contained a large quantity of cannabis. He also found a pump action shot gun lying on the ground near where the appellant was when he first saw him.

The Appellant was subsequently convicted of possession of

the cannabis.

The Appellant refused to be interviewed at the time.

Another police officer, Dyett, gave evidence of enquiries made of the Department of Social Security, the Taxation Department and elsewhere which failed to establish any source of

income on the Appellant's part.

Each of the two police officers swore that they had formed

the opinion that the moneys had been derived either from the

production or sale of cannabis.

There was no evidence of any activity at the property which might account for the presence of the various items of property referred to in the second charge. There was evidence from a police officer as to his suspicions as to this property.

The Appellant gave evidence. The effect of this was that he had worked at various jobs and had been paid in all but two of them in cash. He also said that he had received $5,000 from his grandfather on two separate occasions some years earlier.

The appellant sought to elaborate before us upon the claim that

he had made in the Magistrates Court by an affidavit to which

are attached various documents.

The Stipendiary Magistrate did not accept the evidence of

the appellant and convicted him.

The only ground of appeal against conviction is that the

decision was unsafe and unsatisfactory.

Nothing emerges from the material before the Court which would support such a conclusion. It was plainly open to the Magistrate to reject the evidence of the appellant who bore the onus of accounting for the possession of the property once the Magistrate was satisfied that the suspicion was reasonably

formed. As I have said he held that the Appellant had not

satisfied him that he had come by the property in any other

manner than as specified in the charges.

The appeal against conviction must be dismissed.
So far as the terms of imprisonment which were imposed are

concerned, the appellant had previously been convicted of drug

offences and of offences involving firearms.

The learned Stipendiary Magistrate imposed a sentence of

12 months' imprisonment in respect of the first of the charges

referred to above under the Drugs Misuse Act, three months' imprisonment in respect of the second of those charges, six

months' imprisonment in respect of the charge of possession of a weapon in a manner likely to cause alarm and imprisonment for one month in respect of each of the two charges of possession of an unlicensed firearm.

All of these sentences were to be served concurrently and also concurrently with any other sentence. The Appellant was sentenced to imprisonment for 12 years on a count of attempted murder arising out of the events of the 30 January, 1993 with a recommendation that he be eligible to be considered for parole after serving four years and six months. He has been sentenced to other terms of imprisonment in respect of other offences

arising out of the events of that day.

The learned Stipendiary Magistrate was entitled to take a serious view of the circumstances of these offences and when the appellant's criminal history is considered it is impossible to conclude that the sentences imposed by the learned Stipendiary Magistrate are excessive. The appeal against the convictions

will be dismissed. Leave to appeal in respect of the sentences
imposed is refused.