R v Schodde

[2017] QCA 210

[2017] QCA 210

GOTTERSON JA
MORRISON JA
BOND J

CA No 313 of 2016
DC No 217 of 2016
DC No 583 of 2016

THE QUEEN

v

SCHODDE, Kyle Graeme  Applicant

BRISBANE

THURSDAY, 21 SEPTEMBER 2017

JUDGMENT

MORRISON JA:  In this matter, the applicant was sentenced on three counts.  Count 1 was trafficking; count 2, possession of a dangerous drug; and count 3, possessing property obtained from trafficking, the property being money in the sum of $20,000.  He was sentenced on the 21st of October 2016.  He lodged a notice seeking leave to appeal against his sentence on 18 November 2016, the sole ground of which was that the confiscation order made as part of the sentence below was an order not according to law.  Since that time, the applicant has not filed an outline as required and there have been attempts to contact him with a view to either getting an outline or securing his appearance today.  Those attempts have occurred in July 2017 when a record book and other material were forwarded to him by registered post.

In August, the Deputy Registrar attempted to contact him at a time when he was no longer in custody, but without success.  Attempts were also made in September to find an address or a phone number where he could be contacted.  To the current time, the applicant has not submitted an outline of argument and has made no contact with the Registry.  Those circumstances by themselves would lead me to conclude that the application could be dismissed for want of prosecution.  However, there is another matter that I will deal with.  Count 3, which was the possession of property obtained from trafficking, involved the finding, on an execution of a search warrant, of $20,000 in a safe.

The agreed schedule of facts referred to the finding of the $20,000 and that it was put forward by the Crown as the proceeds of drug trafficking.  At the sentencing hearing, the learned sentencing judge raised the question that the various factual matters set out in the schedule of facts did not precisely identify by mathematical means that the $20,000 was entirely from trafficking.  However, as that debate was developed, counsel appearing then for the applicant made it plain that the applicant accepted that all of the $20,000 was the subject of trafficking and that he could be sentenced on that basis.  Having made that clear during the course of argument to the learned sentencing judge, the counsel then appearing for the applicant reiterated that when it came to making his own submissions.

Consequently, it was an agreed basis upon – for the sentencing that the whole of the $20,000 was the appropriate sum to take into account in respect of count number 3 for the purposes of confiscation. It is apparent that count number 3 comes within the definitions of a serious criminal offence and therefore a confiscation offence within the meanings of ss 17 and 99 of the Criminal Proceeds Confiscation Act 2002 (Qld). That then enlivened the ability to make an application for confiscation under ss 146 and 151 of that Act and that is what occurred. Accordingly, there is no apparent merit in the proposed application to challenge the sentence. I would dismiss the application.

BOND J:  I agree.

GOTTERSON JA:  I agree.  The order of the Court is that the application for leave to appeal against sentence is refused.