R v Swan - [2000] QCA 430

[2000] QCA 430

COURT OF APPEAL
McMURDO P
DAVIES JA
MACKENZIE J
CA No 195 of 2000
CA No 273 of 2000
THE QUEEN
v.
STEPHEN SWAN Appellant
BRISBANE
..DATE 19/10/2000
JUDGMENT

THE PRESIDENT: This is an application for an extension of time within which to appeal against sentence.
On 20 July 2000 in the Supreme Court at Brisbane the applicant was convicted of one count of possession of dangerous drugs (heroin, methylamphetamine and cannabis sativa) with a circumstance of aggravation in that the quantity of methylamphetamine exceeded two grams on 21 April 1999; one count of possession of a dangerous drug, methylamphetamine, also on 21 April 1999; and a further count of possession of methylamphetamine on 20 August 1999.
The applicant was convicted after a four day trial. He was sentenced to five years' imprisonment in respect of count 1 and three years' imprisonment in respect of counts 2 and 3. Those sentences were ordered to be concurrent with each other but cumulative upon his present sentence of imprisonment. The learned sentencing Judge recommended that the applicant be considered eligible for parole after serving two years of the five year sentence.
The applicant appealed against his conviction within time but did not seek leave to appeal against his conviction. He has today abandoned his appeal against conviction which has been dismissed.
Although the applicant has not given any particular explanation for his delay in seeking leave to appeal against sentence, it seems that Mr Rafter, who is his counsel, came into the matter only recently and advised the applicant that he had some prospect of success in appealing against his sentence.
The facts of the offences are as follows.
In the early hours of 21 April 1999 police were called to an Ipswich motel room rented by the applicant to investigate a complaint. Drugs were located with a calculated weight of pure methylamphetamine of 5.485 grams, pure heroin of .690 grams and 14 to 15 grams of cannabis sativa. Empty foils were found in rubbish bins in the room and syringes were located in a travel case belonging to the applicant's two female companions.
Paper in the applicant's wallet contained details for the manufacture of the second schedule drug, metcathinone, a stimulant similar to amphetamine, together with $850 cash and deposit slips totalling $28,000. These facts constituted count 1.
A further two foils containing a total weight of pure amphetamine of 1.418 grams were found in the applicant's motor vehicle, secreted beneath the centre console. This constituted count 2.
The applicant was charged and, rather surprisingly because he was on parole at the time for trafficking in methylamphetamine, was released on bail.
On 20 August 1999 police attended an address at Bundamba where the applicant was visiting two other males. As the applicant left the room, police saw him drop a silver packet from his right hand. He kicked the packet under a pile of clothes on the floor.
A search by police located a silver foil packet which…

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 Swan

Details

AGLC: R v Swan [2000] QCA 430
Case: [2000] QCA 430
Decision Date: 19/10/2000

CaseChat Overview and Summary

The case of R v Swan involved the appellant, Stephen Swan, who sought an extension of time to appeal against his sentence. Swan was convicted in the Supreme Court at Brisbane of possession of dangerous drugs with circumstances of aggravation. He was sentenced to five years' imprisonment for the first count and three years' imprisonment for the second and third counts, with the sentences to run concurrently with each other but cumulatively upon his present sentence of imprisonment. Swan appealed against his conviction but later abandoned it, and his appeal against sentence was heard in the Queensland Court of Appeal.

The primary legal issue the Court of Appeal had to decide was whether the cumulative sentence imposed on Swan was manifestly excessive. The Court considered the complexity of sentencing under the Penalties and Sentences Act 1992 and the difficulties faced by sentencing judges when all relevant matters are not satisfactorily placed before the sentencing court. The Court of Appeal also examined the effect of Swan's parole period being cancelled due to his conviction and sentence during that period. The Court recognised the need to moderate cumulative sentences in appropriate cases where the combined effect of the sentences is oppressive.

The Court of Appeal found that the combined effect of the cumulative sentence imposed on Swan was manifestly excessive. While the quantity of drugs and the commercial element involved in the offences warranted a substantial sentence, the Court considered the sentence to be heavier than necessary given the circumstances. The Court also noted that Swan was a mature man who was unable to claim the benefit of remorse or an early plea of guilty, and he had a significant criminal history beyond his trafficking conviction in 1993. The Court found that the appropriate sentence in this case was a cumulative sentence of three years' imprisonment with no recommendation for parole.

The Court of Appeal granted the application for an extension of time to appeal against sentence, allowed the appeal, and varied the sentence imposed at first instance. The Court substituted a sentence of three years' imprisonment, concurrent with the sentences on counts 2 and 3 but cumulative upon the sentence currently being served. The Court confirmed the sentence imposed at first instance in all other respects.

Orders