R v Trajkov - [2017] QCA 292

[2017] QCA 292

COURT OF APPEAL

GOTTERSON JA
MORRISON JA
HENRY J

CA No 158 of 2017
SC No 89 of 2016

THE QUEEN

TRAJKOV, Borce Applicant

BRISBANE

WEDNESDAY, 29 NOVEMBER 2017

JUDGMENT

HENRY J: The applicant pleaded guilty to trafficking, possession of methylamphetamine, possession of 3,4-methylenedioxyamphetamine, (“MDA”), possession of cannabis, possession of things used in connection with trafficking and a summary charge of possession of a restricted drug.

On the charges of trafficking and possession of cannabis, he was sentenced to concurrent sentences of three years’ imprisonment and seven days’ imprisonment respectively. He was convicted but not further punished for the other offences. His head sentence of three years’ imprisonment was suspended after 10 months for an operational period of four years.

The applicant, who appears for himself, seeks leave to appeal this apparently moderate sentence on the sole ground it was manifestly excessive. He does not complain about the head sentence of three years’ imprisonment but submits the pre-suspension period in custody of only 10 months is too long and should instead be only five or six months.

The applicant was a 29 year old soldier when the police executed a search warrant on his Townsville home on 18 August 2015. They there found five clip-seal bags of methylamphetamine with a gross weight of 23.596 grams and a net weight of 17.154 grams, reflecting a purity of 72.7 per cent. The police also found 14 MDA tablets, two foils of cannabis, a set of digital scales, a quantity of new clip-seal bags and a mobile phone.

The applicant cooperated with the search and made some admissions. He stated he had received a quantity of 50 pills in one transaction and was selling those. He explained he had received a bag of ice which he was also gradually selling. He claimed he was supplying dangerous drugs for bikies in order to pay down a debt of $25,000, which a lady friend of his had incurred. He represented he was not personally receiving money for the drugs and rather, the money was being paid to the bikies he did not name. These assertions were not persisted with below, it having become obvious from deleted text messages recovered from his mobile phone that he was receiving money for the drugs he sold.

The text messages evidenced seven supplies or offers to supply during the trafficking period of 19 March 2015 to 19 August 2015. It is obvious from their content that there had been sales additional to those evidences by the mobile phone text messages. The seven text messages involved a total of four customers. Five of the texts were customer-initiated, commencing with inquiries such as, “Mate is asking if u got rocks” and “Hey, man, could I get five of them beers that I tried the other day my mate wants to try them.” The text messages in the main involved reference to the supply of MDMA tablets in street-level amounts for $30 each. Two of the text messages…

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 Trajkov

Details

AGLC: R v Trajkov [2017] QCA 292
Case: [2017] QCA 292
Decision Date: 29 NOVEMBER 2017

CaseChat Overview and Summary

The applicant, Borce Trajkov, sought leave to appeal his sentence for trafficking, possession of methylamphetamine, possession of MDA, possession of cannabis, possession of things used in connection with trafficking, and a summary charge of possession of a restricted drug. Trajkov was sentenced to concurrent sentences of three years’ imprisonment and seven days’ imprisonment for trafficking and possession of cannabis, respectively. The head sentence of three years’ imprisonment was suspended after 10 months for an operational period of four years. Trajkov argued that the pre-suspension period in custody of 10 months was too long and should be reduced to five or six months. The Court of Appeal was required to determine whether the sentence was manifestly excessive and whether the applicant's complaints were valid grounds for appeal.

The Court of Appeal held that the sentence was not manifestly excessive and dismissed the applicant's complaints. The Court found that the sentencing judge had taken into account the applicant's personal circumstances, including his disability and the deprivation of his entitlement as an ex-serviceman to financial and medical support. The Court also noted that the applicant had taken positive steps towards rehabilitation and had cooperated with the administration of justice through his plea of guilty. The Court found that the applicant's complaints were either irrelevant or without substance, and therefore, the application for leave to appeal should be refused.

The Court of Appeal ordered that the application for leave to appeal against sentence was refused. The Court held that the sentence imposed by the sentencing judge was a moderate sentence, comfortably within the sound exercise of the sentencing discretion. The Court found that the applicant's complaints were either irrelevant or without substance, and therefore, the sentence should not be varied. The Court held that the applicant's sentence was not manifestly excessive and dismissed the application for leave to appeal.

Orders