R v Wainscott - [2020] QCA 11

[2020] QCA 11

COURT OF APPEAL

FRASER JA
MORRISON JA
BODDICE J

CA No 340 of 2018
SC No 56 of 2018

THE QUEEN

WAINSCOTT, Anthony Peter Applicant

BRISBANE

THURSDAY, 6 FEBRUARY 2020

JUDGMENT

BODDICE J: On 8 October 2018, the applicant pleaded guilty to five indictable offences, being: one count of trafficking in dangerous drugs, one count of possessing a dangerous drug in excess of two grams, two counts of possessing a dangerous drug and one count of wilful damage. The applicant also pleaded guilty to four summary charges, being: two charges of possession of a thing used in connection with the smoking of a dangerous drug, one charge of possession of a thing for use in connection with the smoking of a dangerous drug and one charge of possession of a dangerous drug.

On 20 November 2018, the applicant was sentenced to imprisonment for nine years on the trafficking charge, and concurrent, lesser terms of imprisonment in respect of each of the remaining indictable offences and each of the summary charges. No parole eligibility date was set, with the result that the applicant was eligible for parole after serving 50 per cent of the period of imprisonment imposed in respect of the trafficking count. The applicant seeks leave to appeal the sentence imposed with respect to the trafficking count. The sole ground of appeal relied upon is that the sentence imposed was affected by specific error, namely, that the sentencing judge impermissibly had regard to the irrelevant considerations that the applicant could have had his bail revoked prior to sentence, so as to commence his term in custody at an earlier time.

The trafficking count related to the dangerous drug, methylamphetamine. The applicant, by his plea of guilty, admitted that he had trafficked in that drug for about eight months, at a wholesale level, for significant profit. The trafficking operation had a small customer base but was conducted in a fairly sophisticated way. Great care was taken to avoid detection. Surveillance evidence established that, during the course of the trafficking period, the applicant was, from time to time, owed tens of thousands of dollars by others, due to his ability to provide wholesale quantities on a “tick” basis. A financial analysis revealed the applicant must have profited to an extent of over $85,000. A package, intercepted by police during the course of the trafficking operation, was found to contain 198.6 grams of pure methylamphetamine, being the subject of the count of possession of a dangerous drug in excess of two grams. The remaining indictable offences and the summary offences related to items found in the course of the execution of search warrants.

The sentencing judge found the applicant’s conduct particularly serious, as it involved operating at a wholesale level over a fairly lengthy period. The sentencing judge rightly observed that, having regard to the serious aspects of that offending, and a consideration of relevant authority, a sentence of 10 years, even allowing for the applicant’s cooperation by…

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 Wainscott

Details

AGLC: R v Wainscott [2020] QCA 11
Case: [2020] QCA 11
Decision Date: 6 FEBRUARY 2020

CaseChat Overview and Summary

In the case of R v Wainscott, the applicant, Anthony Peter Wainscott, sought leave to appeal against the sentence imposed for trafficking in dangerous drugs. The appeal was limited to the contention that the sentencing judge had improperly considered the fact that the applicant could have surrendered his bail earlier, which could have resulted in him starting his prison term sooner. Wainscott was found guilty of various drug-related offences, including trafficking in methylamphetamine, possessing a dangerous drug in excess of two grams, and other related charges. He was sentenced to a total of nine years in prison, with no specific parole eligibility date set, allowing him to be eligible for parole after serving 50% of the sentence for the trafficking count.

The primary legal issue before the court was whether the sentencing judge had erred by considering the applicant's decision to remain on bail as an irrelevant factor. The court had to determine whether this consideration affected the overall exercise of the sentencing discretion. The court needed to examine the sentencing remarks to see if they revealed any such error and to ensure that the sentence imposed was just and appropriate, taking into account all relevant and permissible factors.

The court found that the sentencing judge's remarks about the applicant's choice to remain on bail were made in the context of considering all surrounding circumstances, including the delay in sentencing and the applicant's attempts to re-establish himself in the community. These observations did not constitute taking into account irrelevant or impermissible considerations. The reduction of the sentence from 10 years to nine years, without setting an earlier parole eligibility date, was deemed a sound exercise of the sentencing discretion. The court concluded that the sentence appropriately reflected the delay in sentencing, the applicant's cooperation through his pleas of guilty, and other mitigating factors such as his attempts at rehabilitation and lack of relevant criminal history. Therefore, the application for leave to appeal was refused.

Orders