R v Spark - [2018] QCA 231

[2018] QCA 231

SOFRONOFF P
McMURDO JA
HENRY J

CA No 209 of 2018
SC No 1838 of 2017

THE QUEEN

SPARK, Jamie Glen Applicant

BRISBANE

MONDAY, 24 SEPTEMBER 2018

JUDGMENT

SOFRONOFF P: The applicant pleaded guilty on 3 July 2018 to one count of trafficking in dangerous drugs and three counts of possessing dangerous drugs, being methylamphetamine, 3,4-methylenedioxymethamphetamine and cannabis, respectively. He was sentenced to three and a half years imprisonment in relation to the trafficking charge. This term of imprisonment was to be suspended after six months for an operational period of three and a half years. In relation to the other charges, convictions were recorded but the applicant was not further punished.

The applicant now seeks leave to appeal his sentence on two grounds. First, he contends that the sentence was manifestly excessive. Second, he argues that the learned sentencing judge fettered her discretion by determining that the applicant’s age precluded her from imposing a sentence that did not involve a term of actual custody. A third ground has been abandoned.

The applicant was 42 years old at the time of the offences. He came to the attention of police who were intercepting the telephone communications made by one Fischer. During the course of those interceptions it became clear that the applicant purchased drugs on numerous occasions from Fischer in quantities of “quarters” (7 grams), “fulls” (3.5 grams) and “halfs” (1.75 grams). On one occasion the applicant discussed obtaining and storing “500 round jobs”, meaning MDMA tablets. After obtaining drugs from Fischer, the applicant would then resell them in smaller quantities for his customers’ personal use.

Police found a mobile phone at the applicant’s house that contained tick sheets. They also found just over two grams of a crystal powder containing 1.397 grams of methylamphetamine (count 2) and 198 tablets of MDMA packaged into clipseal bags (count 3) and approximately one gram of cannabis (count 4).

The applicant had a minor Queensland criminal history but these were offences that were committed after the charges the subject of the appeal and were not taken into account. He also had a Victorian criminal history which included a bond for a charge of possessing and using cannabis, as well as a suspended sentence of nine months imprisonment for intentionally causing serious injury, criminal damage and making a threat to kill.

The learned sentencing judge, Mullins J, took into account that the applicant had become addicted to methamphetamine after an acrimonious separation from his wife that had resulted in his becoming estranged from his two children. He engaged in trafficking in order to support his addiction. Her Honour had accepted that he had made a timely plea of guilty. She observed that both his employer and his new partner were supportive of him.

The Crown pointed to the quantities of drugs involved as the primary aggravating feature. The Prosecutor relied upon two cases as comparable authorities. The first of these was R v Blumke [2015] QCA 264. Blumke had…

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 Spark

Details

AGLC: R v Spark [2018] QCA 231
Case: [2018] QCA 231
Decision Date: 24 SEPTEMBER 2018

CaseChat Overview and Summary

In the case of R v Spark, the applicant pleaded guilty to trafficking in dangerous drugs and possessing dangerous drugs, namely methylamphetamine, 3,4-methylenedioxymethamphetamine and cannabis. The applicant was sentenced to three and a half years imprisonment for the trafficking charge, which was suspended after six months for an operational period of three and a half years. The applicant sought leave to appeal his sentence on the grounds that it was manifestly excessive and that the sentencing judge fettered her discretion by considering the applicant’s age, which precluded her from imposing a sentence that did not involve a term of actual custody.

The court considered the applicant’s grounds in reverse order, starting with the argument that the sentencing judge fettered her discretion. The court found that the sentencing judge’s statement merely reflected the obvious circumstance that, having regard to the applicant’s mature age, consistency in sentencing for trafficking offences called for a period of actual custody to be served. The court rejected this ground and found that the applicant had been unable to point to any cases in which a mature-aged offender who had trafficked in a way similar to the applicant had been sentenced on the basis that no actual custody was to be served. The court also rejected the ground that the sentence imposed upon the applicant was so excessive as to reveal some inherent error in the exercise of the sentencing judge’s discretion.

The court found that the sentence imposed upon the applicant was appropriate and dismissed the application. The order of the Court was that the application is dismissed.

Orders