R v Welch - [2002] QCA 36

[2002] QCA 36

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

CA No 299 of 2001

THE QUEEN

MICHAEL JOHN WELCH Applicant

BRISBANE

..DATE 19/02/2002

JUDGMENT

DAVIES JA: I will ask Justice Williams to deliver his reasons first.

WILLIAMS JA: This is an application for an extension of time within which to appeal against sentence. The applicant pleaded guilty on 17 September 2001 to a charge of producing amphetamine, the quantity of which exceeded two grams, that being a circumstance of aggravation for purposes of section 8 of the Drugs Misuse Act.

He was sentenced to imprisonment for a period of three and a half years but it was ordered that that period of imprisonment be suspended after serving 15 months, and the learned sentencing Judge fixed the operational period at a period of two years.

The application for extension of time for leave to appeal against sentence was lodged on 30 October 2001; that is approximately a fortnight out of time. In my view that could have been overcome if the applicant was able to show any reasonable prospects of successfully appealing against sentence.

So far as the sentence is concerned, it is merely said that the applicant wishes to appeal on the ground that it was manifestly excessive. In the course of oral argument he indicated that he also now wished to challenge the conviction.

It appears from the remarks of the learned sentencing Judge and the material before this court that police went to the applicant's residence in Cairns because a distinctive odour was noted coming from that place. It was there found that the applicant had assembled all the relevant components and ingredients necessary for the production of amphetamine; apparently the smell was emanating from some chemical reactions that had or were taking place.

It was noted in the course of the sentencing remarks that the material which was found by the investigating police officers could have led to the commercial production of up to about 40 grams of amphetamine. It was also noted that the motive for the production was entirely commercial.

The learned sentencing Judge, having observed that up to
40 grams could have been produced, indicated that he was sentencing in relation to the plea of guilty strictly construed, which was merely that the applicant had produced an amount exceeding the two grams.

The point taken by the applicant in relation to his challenge to the conviction was that no actual quantity of amphetamine had been produced and that therefore the circumstance of aggravation had not been established. He referred to the decision of this Court in Boyd [2001] QCA 421. Boyd, however, was a conviction after a trial; all relevant evidence was before the court. Here there was a plea of guilty and in consequence no detailed evidence was led as to the actual production process and what actual quantity of drug, if any, was produced by the chemical reaction that had obviously taken place. In consequence the plea…

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 Welch

Details

AGLC: R v Welch [2002] QCA 36
Case: [2002] QCA 36
Decision Date: 19 February 2002

CaseChat Overview and Summary

In the case of The Queen v. Michael John Welch, the applicant sought an extension of time to appeal against his sentence. Welch had pleaded guilty to producing amphetamine in a quantity exceeding two grams, which was a circumstance of aggravation under the Drugs Misuse Act. He was sentenced to imprisonment for three and a half years, suspended after serving 15 months, with an operational period of two years. The application for an extension of time to appeal against the sentence was lodged approximately a fortnight out of time. Welch wished to appeal on the ground that the sentence was manifestly excessive and also sought to challenge the conviction, arguing that no actual quantity of amphetamine had been produced.

The court had to decide whether there were reasonable prospects of a successful appeal against the sentence. The sentencing judge noted that the materials found could have led to the commercial production of up to about 40 grams of amphetamine and that the motive for the production was entirely commercial. The court held that the sentence was within range and there was no reasonable prospect of a successful appeal against it. The court also needed to address a technical issue where the operational period for the suspended sentence was incorrectly set at two years instead of the full term of three and a half years. The court ordered the operational period to be corrected to three and a half years.

The court refused the application for an extension of time to appeal against the sentence and denied the oral application for an extension of time to appeal against the conviction. The court ordered that the operational period of the suspended sentence be amended to three and a half years.

Orders