R v Setters - [1999] QCA 350

IN THE COURT OF APPEAL	[1999] QCA 350
SUPREME COURT OF QUEENSLAND

C A No 74 of 1999

Townsville

[R v Setters]

THE QUEEN

DANIELA SETTERS

(Applicant)

McMurdo P Thomas JA Cullinane J

Judgment delivered 24 August 1999

Separate reasons for judgment of each member of the Court, each concurring as to the order made

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS: CRIMINAL LAW - APPEAL & NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSON - APPLICATION TO REDUCE SENTENCE - WHEN REFUSED - DRUG OFFENCES - heroin possession in excess of scheduled quantity - whether judge erred in sentencing on basis that drugs were for a commercial purpose - effect of R v Morrison - whether Crown or defence bore burden of proof as to whether applicant was dealing or heroin was purely for domestic use - onus of proof - whether judge was satisfied beyond a reasonable doubt in finding it “quite plain” - preference that judges use phrase “beyond reasonable doubt” when fact-finding to that standard

R v Nardozzi [1995] 2 QdR 87, (1994) 74 ACrimR 319; R v
Morrison [1999] 1 QdR 397; [1998] QCA 162;, applied

Counsel:	Mr H Walters for the applicant Mr C Chowdhury for the respondent
Solicitors:	Arthur Browne & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	28 July 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 24 August 1999

The applicant pleaded guilty on 4 March 1999 to one count of possession of a dangerous drug, heroin, on 8 November 1998 with the circumstance of aggravation that the quantity exceeded that specified in Schedule 3 of the Drugs Misuse Regulation 1987. She was sentenced to two years imprisonment with a recommendation for parole after nine months. The applicant claims the judge wrongly found the drugs were for a commercial purpose and that the sentence was consequently manifestly excessive.
The applicant was also convicted of one count of possession of property, namely electronic scales, a knife, scissors and tweezers, reasonably suspected of having been acquired for the purpose of committing an offence defined in Part 2 of the Drugs Misuse Act 1986-1988. His Honour took that matter into account in imposing the penalty on the major charge and did not impose any additional punishment. He also recommended that the applicant be provided with drug rehabilitation and physical care that her condition may require.
On 8 November 1998, police executed a warrant on the applicant's address shared with her husband. Her husband was detained by police as he left the premises and after tooting his horn he let them into the house. The applicant was sitting at a table placing a white rock-like substance, later analysed as heroin, into small plastic bags. Nine amounts of white powder had already been bagged. Approximately 7.2 grams of the white rock substance was in a condom. The total amount seized throughout the house, including some located in clothing, was 10.758 grams…

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 Setters

Details

AGLC: R v Setters [1999] QCA 350
Case: [1999] QCA 350
Decision Date: 24 August 1999

CaseChat Overview and Summary

The case of R v Setters involved an appeal against the sentence imposed on the applicant, who was convicted of possession of heroin in excess of the scheduled quantity. The applicant sought a reduction in their sentence, arguing that the sentencing judge had erred in concluding that the drugs were intended for a commercial purpose. The appeal was heard by the court, which was tasked with determining whether the sentencing judge had applied the correct legal principles and whether there were any grounds for reducing the sentence. The court was also required to consider the impact of the decision in R v Morrison, which set out the appropriate approach to sentencing for drug offences, and whether the burden of proof lay with the Crown or the defence to establish the purpose of the drug possession.

The court carefully examined the sentencing remarks and the evidence presented during the trial. It considered whether the judge had correctly applied the legal principles and whether the applicant had demonstrated any grounds for reducing the sentence. The court noted that the judge had found it "quite plain" that the drugs were intended for a commercial purpose, and while the court preferred judges to use the phrase "beyond reasonable doubt" when fact-finding to that standard, it held that the judge's findings were sufficiently clear. The court also considered the impact of R v Morrison and held that the burden of proof lay with the defence to establish that the drugs were for domestic use. The court concluded that the sentencing judge had applied the correct legal principles and had not erred in finding that the drugs were intended for a commercial purpose.

The court ultimately dismissed the appeal and refused the applicant's application for leave to appeal against the sentence. The court held that the sentencing judge had correctly applied the relevant legal principles and had not erred in finding that the drugs were intended for a commercial purpose. The court also held that the applicant had not demonstrated any grounds for reducing the sentence. The court noted that the sentencing judge had considered the appropriate factors and had imposed a sentence that was proportionate to the offence. The court held that the appeal was without merit and dismissed it accordingly.

Orders

Orders of the court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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