R v Starkey - [2019] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Starkey [2019] QDC 240

PARTIES:

THE QUEEN
(respondent)
v
TRACEY THOMAS STARKEY
(applicant)

FILE NO:

Indictment 174/17 and bench charge sheets 496/18

DIVISION:

Criminal

PROCEEDING:

Contested Sentence

ORIGINATING COURT

District Court
Maroochydore

DELIVERED ON:

2 December 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

29 November 2019

JUDGE:

Cash QC DCJ

ORDERS:

Count 1: imprisonment for three years;
Count 2: imprisonment for two years;
Count 4: imprisonment for one year;
Count 7: imprisonment for one year;
Count 8: imprisonment for four months;
For the summary offence of unlawfully possessing a category “B” weapon the defendant is imprisoned for six months;
For the summary offence of unlawfully possessing a category “A” weapon the defendant is imprisoned for six months;
For the summary offence of unlawfully possessing fireworks the defendant is imprisoned for one month;
For the summary offence of unlawfully possessing ammunition the defendant is imprisoned for one month;
All of the terms of imprisonment are to be served concurrently.
Order that all terms of imprisonment be suspended immediately and the defendant must not to commit an offence punishable by imprisonment for a period of four years.
Declare the defendant has spent 23 days in pre-sentence custody between 31 May 2016 and 22 June 2016. Declare this to be time already served under the sentences imposed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE - CONTESTED – where the defendant was found transporting a large amount of cannabis – where the defendant was found with more than $12,000 in cash – where defendant admits the transportation of cannabis amounts to trafficking – where defendant denies transporting cannabis on more than one occasion – dispute as to facts

Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 9(2)(a)

Briginshaw v Briginshaw (1938) 60 CLR 336, 361-363
R v L; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175

COUNSEL:

K Milbourne for the prosecution
M McCarthy for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution
Anderson Fredericks Turner for the defendant

Introduction

In late May 2016 the defendant was driving a hire car near Milmerran. He was stopped by police. In the boot of the hire car was 20 pounds of cannabis packaged in 10 sealed bags of two pounds each. The defendant’s wallet contained $955 in cash. The defendant was arrested and declined to be interviewed. Police searched his home at Kings Beach the same day. In a walk-in wardrobe they found about 200 grams of loose cannabis. In a hallway cupboard they found $12,000 in the pocket of a jacket and two sealed bags of cannabis, each weighing a pound. In another residence associated with the defendant police found a few grams of cannabis.
The defendant admits he trafficked in cannabis and possessed the cannabis found at his home. He says he did so because an acquaintance of his, known only as “Shifty”,…

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 Starkey

Details

AGLC: R v Starkey [2019] QDC 240
Case: [2019] QDC 240
Decision Date: 2 December 2019

CaseChat Overview and Summary

In the Supreme Court of Queensland, the defendant was convicted on eight counts of various drug and weapons-related offences. The defendant contested the nature and extent of his involvement in the transportation of cannabis, specifically denying that he had transported it on more than one occasion. The central issue before the court was to determine the appropriate sentence for the defendant, taking into account his plea of guilty to trafficking, his personal culpability, and the seriousness of the offences. The court had to balance the need for deterrence and denunciation against the principles of rehabilitation and the avoidance of unnecessary imprisonment.

The court considered the defendant's personal history, including his troubled upbringing, his struggles with education and employment, and his prior criminal record. The defendant argued for a suspended sentence, citing his rehabilitation and the fact that he had not reoffended since his arrest. The prosecution, on the other hand, argued for a custodial sentence to reflect the seriousness of the offences and to serve as a deterrent. The court ultimately decided that a suspended sentence was appropriate, taking into account the defendant's guilty plea, his low level of personal culpability, and his demonstrated rehabilitation. The court also noted the principle that imprisonment should be considered a sentence of last resort.

The court imposed sentences on all counts, which were to be served concurrently. However, all terms of imprisonment were suspended immediately, and the defendant was ordered not to commit any offence punishable by imprisonment for a period of four years. The court declared that the 23 days the defendant had spent in pre-sentence custody were to be counted as time already served under the sentences imposed.

In conclusion, the court determined that a suspended sentence was the most appropriate course of action, reflecting a balance between the need for punishment and the principles of rehabilitation and the avoidance of unnecessary imprisonment. The court's decision was influenced by the defendant's guilty plea, his low level of personal culpability, and his demonstrated rehabilitation since his arrest. The court also considered the need for deterrence and denunciation, but ultimately decided that a suspended sentence was the most appropriate course of action.

Orders

Orders of the court

Count 1: imprisonment for three years;

Count 2: imprisonment for two years;

Count 4: imprisonment for one year;

Count 7: imprisonment for one year;

Count 8: imprisonment for four months;

For the summary offence of unlawfully possessing a category “B” weapon the defendant is imprisoned for six months;

For the summary offence of unlawfully possessing a category “A” weapon the defendant is imprisoned for six months;

For the summary offence of unlawfully possessing fireworks the defendant is imprisoned for one month;

For the summary offence of unlawfully possessing ammunition the defendant is imprisoned for one month;

All of the terms of imprisonment are to be served concurrently.

Order that all terms of imprisonment be suspended immediately and the defendant must not to commit an offence punishable by imprisonment for a period of four years.

Declare the defendant has spent 23 days in pre-sentence custody between 31 May 2016 and 22 June 2016. Declare this to be time already served under the sentences imposed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Once again a trial did not take place. Instead the defendant pled guilty to trafficking (Count 1) and the prosecution discontinued Counts 3, 5 and 6.[2] The defendant identified he disputed the facts to be alleged by the prosecution and the matter was listed for sentence later in 2018. This hearing did not proceed and was adjourned at the request of the parties for hearing in April 2019. This hearing did not proceed and was adjourned at the request of the parties for hearing in September 2019. This hearing was also adjourned at the request of the parties and the matter listed for sentence on 29 November 2019. Contrary to the common saying, the fourth time proved to be the charm and the hearing proceeded. On this occasion the defendant also pled guilty to four summary offences. Those offences were the unlawful possession of a category “A” weapon, the unlawful possession of a category “B” weapon, unlawfully possessing fireworks and unlawfully possessing ammunition.[2] I note that while the prosecution chose not ask a jury to return a verdict on the charges that related to the money found in the defendant’s possession, it persisted in the allegation that the money was the proceeds of trafficking.Evidence The defendant did not dispute any of the facts outlined in the document tendered by the prosecution titled “Contested Sentence Statement of Agreed Facts”.[3] Relevantly, the facts include the matters summarised above as well as estimates of the value of the cannabis. The police search of the home at Kings Beach also revealed the three firearms the subject of the indictment (a semi-automatic rifle) and summary charges (a bolt action rifle and an antique looking musket), as well as fireworks and ammunition. The prosecution does not allege the firearms or ammunition were connected to the drug offences.[3] The defendant did not admit the opinion expressed in the last sentence of page 4 but as it happens this opinion is not relevant to the determination of this matter. It was agreed that hire car records show the defendant took hire cars for eight trips exceeding 2000 kilometres between January 2014 and May 2016. Five of these trips covered a distance of more than 3000 kilometres. The shortest hire period was 97 hours (four days) and the longest ten days. As well as the long trips, the defendant hired a car, a minibus and trucks over shorter times and distances. The prosecution also tendered a statement by Senior Financial Analyst employed by the Queensland Police Service, Daniel Tracey. Mr Tracey gave evidence at the hearing. The effect of Mr Tracey’s uncontested evidence was that an analysis of the defendant’s financial records indicate he had available cash in excess of his apparent income. This “unsourced income” amounted to about $48,000 for the period 28 January 2014 to 31 May 2016, or $36,000 for the period 14 March 2015 to 31 May 2016. Both of these figures included the nearly $13,000 in the defendant’s possession when he was arrested on 31 May 2016. If this money is set aside, the amounts equate to about $300 per week in the case of the longer period and $370 per week for the shorter.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It follows that the defendant is to be sentenced on the basis that he agreed to transport cannabis on one occasion for Shifty in exchange for a pound of cannabis. The cannabis found at his home was for his personal use and the firearms, explosives and ammunition were unconnected to the drug offences.Considerations on sentence The defendant is 56 years old. He was 52 when he was arrested. In 1981 he was convicted of stealing and in 2003 of breaching a domestic violence protection order. He has no other convictions. After his arrest the defendant was held in custody for 23 days before being released on bail. The defendant has four adult children. He separated from the mother of the children many years ago. The defendant’s own parents were alcoholics and separated when he was young. He struggled at school, not learning to read and write until he had children of his own. Leaving school early, the defendant worked as a baker and subsequently in a variety of sales or labouring roles. In 2000 he was assaulted and suffered injury to his head and neck. As a result he receives a disability support pension. The defendant drinks more than is probably healthy but no longer takes cannabis. In the defendant’s favour, he pled guilty, although at a relatively late stage of the proceedings. His personal culpability for the offence of trafficking is at the lower end: he was not the instigator or the organiser of the enterprise. To the extent that he disputed the allegations he was justified in doing so. Against that is the undoubted seriousness of the offences. 20 pounds is a lot of cannabis. It was worth perhaps $60,000. There is a need to deter generally people who might be tempted to help others carry out trafficking on this scale, and to denounce what the defendant did. As well I am to sentence the defendant for the unrelated Weapons Act offences. An important consideration is that the defendant is entitled to the benefit of the principle that imprisonment should be considered a sentence of last resort, and orders that allow him to stay in the community are to be preferred.[4] [4] Penalties and Sentences Act 1992, section 9(2)(a). I was referred to three cases: Brienza [2010] QCA 15; Broad & Prior [2010] QCA 53 and Peters [2012] QCA 325. Brienza was a more serious case as was Broad. Prior’s offending was dissimilar to the present case. Peters was perhaps closest but involved transporting cannabis on more than one occasion. None of these cases involved a precisely similar set of circumstances. The prosecution contended that if the defendant were to be sentenced on the basis for which he contended, he should be sentenced to imprisonment for four years with parole eligibility after a third of the sentence. The defendant submitted the appropriate sentence fell between two and half to three years’ imprisonment which should be suspended immediately. In this regard the defendant placed particular reliance on his rehabilitation since his arrest in 2016.[5] He no longer takes cannabis and has not committed any offence in the three and half years since his arrest.[5] R v L; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444.

CITATION:	R v Starkey [2019] QDC 240
PARTIES:	THE QUEEN (respondent) v TRACEY THOMAS STARKEY (applicant)
FILE NO:	Indictment 174/17 and bench charge sheets 496/18
DIVISION:	Criminal
PROCEEDING:	Contested Sentence
ORIGINATING COURT	District Court Maroochydore
DELIVERED ON:	2 December 2019
DELIVERED AT:	Maroochydore
HEARING DATE:	29 November 2019
JUDGE:	Cash QC DCJ
ORDERS:	Count 1: imprisonment for three years; Count 2: imprisonment for two years; Count 4: imprisonment for one year; Count 7: imprisonment for one year; Count 8: imprisonment for four months; For the summary offence of unlawfully possessing a category “B” weapon the defendant is imprisoned for six months; For the summary offence of unlawfully possessing a category “A” weapon the defendant is imprisoned for six months; For the summary offence of unlawfully possessing fireworks the defendant is imprisoned for one month; For the summary offence of unlawfully possessing ammunition the defendant is imprisoned for one month; All of the terms of imprisonment are to be served concurrently. Order that all terms of imprisonment be suspended immediately and the defendant must not to commit an offence punishable by imprisonment for a period of four years. Declare the defendant has spent 23 days in pre-sentence custody between 31 May 2016 and 22 June 2016. Declare this to be time already served under the sentences imposed.
CATCHWORDS:	CRIMINAL LAW – SENTENCE - CONTESTED – where the defendant was found transporting a large amount of cannabis – where the defendant was found with more than $12,000 in cash – where defendant admits the transportation of cannabis amounts to trafficking – where defendant denies transporting cannabis on more than one occasion – dispute as to facts Evidence Act 1977 (Qld), s 132C Penalties and Sentences Act 1992 (Qld), s 9(2)(a) Briginshaw v Briginshaw (1938) 60 CLR 336, 361-363 R v L; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444 R v Nagy [2004] 1 Qd R 63; [2003] QCA 175
COUNSEL:	K Milbourne for the prosecution M McCarthy for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the prosecution Anderson Fredericks Turner for the defendant