R v Welch

[2004] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v Welch [2004] QCA 108

PARTIES:

R
v
WELCH, Prem Chilan

(applicant)

FILE NO/S:

CA No 412 of 2003

SC No 48 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

13 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2004

JUDGES:

McMurdo P, McPherson JA and Holmes J

Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW- JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF THE OFFENCE –where the appellant pleaded guilty to possession of cocaine with a circumstance of aggravation, the quantity of the drug being 39.1 grams – where the learned sentencing judge found that the possession was for a commercial purpose – whether the sentencing judge erred in reaching the conclusion that the cocaine was possessed for a commercial purpose

Darren Gaven (Indictment No 297 of 2001), distinguished
R v Ioan Ban [1992] QCA 98; CA No 33 of 1992, 13 May 1992, distinguished

R v Jenkins [1999] QCA 447; CA No 148 of 1999, 27 of October 1999, considered

COUNSEL:

The appellant appeared on his own behalf

B G Campbell for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent.

HOLMES J:  The applicant for leave to appeal against sentence was sentenced to three years' imprisonment for possession of cocaine with a circumstance of aggravation, the quantity of the drug being 39.1 grams. 

The learned sentencing Judge found that the possession was for a commercial purpose.  He took into account a timely plea of guilty (a plea was entered at the committal proceedings) and the absence of any prior convictions as at the date of arrest.  The applicant did have one conviction subsequent to his arrest.  He had pleaded guilty to possession of a small amount of cannabis and of utensils and was dealt with by way of a fine in the Magistrate's Court.

He was 22 and was described as unemployed when the offence was committed, but he had worked as a casual labourer.  He was 24 years of age at sentence.  The applicant contends that the learned sentencing Judge erred in reaching the conclusion that the drugs were possessed by him for a commercial purpose.  He asserts there was no evidence to support that conclusion.

The cocaine, the subject of the charge, was found in a pencil case inside a bag belonging to the applicant upon a police search of a motel room in Cairns occupied by the applicant and his girlfriend.  The applicant was not there at the time but arrived later.  A search of his person found $3,100 in cash in a bag in his underpants.  Another person in his company had $5,350 on him.

The applicant had arrived at the…