R v Wilkinson - [2017] QCA 119

[2017] QCA 119

COURT OF APPEAL

SOFRONOFF P
FRASER JA
PHILIPPIDES JA

CA No 312 of 2016
SC No 1292 of 2016
SC No 1329 of 2016

THE QUEEN

WILKINSON, Joshua Earl Applicant

BRISBANE

WEDNESDAY, 7 JUNE 2017

JUDGMENT

SOFRONOFF P: The applicant was charged with 19 counts of various drug offences. He was also charged with two summary offences but nothing turns upon these and they will not be mentioned further. The most serious of the offences were three counts of trafficking. Count 11 was a charge of trafficking in methylamphetamine between 5 June 2013 and 20 July 2013. Count 12 was a charge of trafficking in cannabis between 31 May 2013 and 5 November 2013. Count 23 was a charge of trafficking in methylamphetamine between 1 May 2015 and 11 June 2015. This last offence was committed while the applicant was on bail, having been charged with counts 11 and 12.

The applicant was sentenced to six-and-a-half years’ imprisonment on count 11. He was sentenced to two years’ imprisonment on count 12. He was sentenced to three years’ imprisonment on count 23. His parole eligibility date was set at two years and six months. He was given various other penalties in respect of the other offences and it is not necessary to recount them.

The applicant is now 33 years old. He was 29 years old and 31 years old during the period of offending. He has a long criminal history which began in 2001 when he was 17 years old. He has appeared before the Courts to be sentenced on about 40 occasions, not including his appearance in respect of the present matters. For present purposes, it is relevant to observe that he has a history of convictions of drug offences. Indeed, the first offence in his criminal history was an offence of possession of dangerous drugs committed on 13 April 2001. There followed 10 further offences or sets of offences and in total he has been convicted of 18 offences involving drugs. This includes three convictions for possessing a Schedule 1 drug in a quantity over two grams. He has also been convicted of two offences of supplying a dangerous drug.

On 18 June 2009, the applicant appeared before Justice Martin in the Supreme Court. On that occasion, he was sentenced to a term of imprisonment of three months. He had previously been sentenced to nine months’ imprisonment arising out of the same series of events and, having regard to the imposition of that earlier sentence, Justice Martin imposed the sentence of three months with an order that the applicant be released on parole on the day of sentence. The matter is relevant because on that occasion, Justice Martin said to the applicant:

“Whether you’ve decided to change your ways or not doesn’t really matter, Mr Wilkinson, you are going to spend – on this basis, unless you do, you’ll spend the rest of your life in gaol.”

In respect the applicant promised to try…

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 Wilkinson

Details

AGLC: R v Wilkinson [2017] QCA 119
Case: [2017] QCA 119
Decision Date: 7 JUNE 2017

CaseChat Overview and Summary

The Court of Appeal was asked to determine whether the sentence imposed by the learned sentencing judge in the Supreme Court was excessive and whether her Honour’s sentencing discretion had miscarried. The applicant, Joshua Earl Wilkinson, was convicted of multiple drug offences and sentenced to an effective term of imprisonment of six-and-a-half years. The primary legal issue was whether the sentence was manifestly excessive and whether the exercise of discretion by the sentencing judge had miscarried.

The Court found that the applicant had a lengthy criminal history, starting from 2001 when he was 17 years old, involving numerous drug-related offences. The applicant's criminal activities continued even while on bail and parole, demonstrating a persistent pattern of offending. The Court noted that the applicant had been found with significant quantities of drugs and was involved in large-scale trafficking operations. The sentencing judge had considered various mitigating factors, including the applicant’s mental health issues, his efforts to change his life through religious studies, and his concern for his young son.

The Court held that the sentence was not only within the range of proper and appropriate sentences but was actually lenient given the severity and extent of the applicant’s offending. The disparity in sentencing compared to the applicant's accomplices was justified by the differences in their respective roles and histories. The Court also dismissed the applicant's contention that his plea of guilty should be vacated, finding no evidence of improper inducement or lack of understanding at the time of the plea.

The Court of Appeal unanimously dismissed the appeal and the application for leave to appeal against the sentence, upholding the original sentencing decision.

Orders