The King v Gray - [2024] QCA 250

[2024] QCA 250

COURT OF APPEAL

MULLINS P
FLANAGAN JA
BROWN JA

CA No 243 of 2024
SC No 38 of 2024
SC No 44 of 2024

THE KING

GRAY, Tim Justin Applicant

BRISBANE

TUESDAY, 10 DECEMBER 2024

JUDGMENT

FLANAGAN JA: On 12 November 2024, the applicant pleaded guilty to one count of possessing a dangerous drug in excess of two grams (Count 1) and two counts of possessing a dangerous drug (Counts 2 and 3). He also pleaded guilty to one summary charge of possessing property suspected of having been used in connection with the commission of a drug offence.
The applicant was sentenced to two years’ imprisonment for Count 1, with a parole release date fixed at 12 March 2025. For Counts 2 and 3 and the summary charge, the applicant was convicted but not further punished.
The effect of the sentence in relation to Count 1 meant that the applicant had to serve an actual period in custody of four months.
If granted leave to appeal, the sole ground of appeal is that the sentence imposed on both the head sentence and requirement to serve actual time in custody rendered the sentence manifestly excessive.
Whether a sentence is manifestly excessive is not to be decided by reference to a predetermined range of available sentences, but by reference to all of the factors relevant to sentence: R v Goodwin; Ex parte Attorney-General(Qld) [2014] QCA 345 at [5] per Fraser JA. As observed by the High Court in R v Pham (2015) 256 CLR 550 at [28] per French CJ, Keane and Nettle JJ:
“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”
It is evident from the consideration of the sentencing remarks that the learned sentencing judge had regard to all relevant sentencing factors in ultimately determining that a head sentence of two years with a period of actual custody of four months was appropriate. The sentence imposed cannot be considered manifestly excessive and leave to appeal should be refused.
The facts of the offending are that on the 19 June 2023 police executed a warrant at an address. The applicant was found to be in possession of two clip seal bags containing 29.836 gross of a substance which contained 22.347 grams of methylamphetamine with a purity of 74.9%. This constituted the offending for Count 1. The amount of methylamphetamine possessed was more than 11 times the schedule amount. For reasons detailed below, it was accepted by the Crown that the applicant’s possession of this amount of methylamphetamine was for personal use only and had no commercial purpose.
Police also located another clip seal bag which had two tablets containing 0.647 grams of MDMA (Count 2). Count 3…

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 The King v Gray

Details

AGLC: The King v Gray [2024] QCA 250
Case: [2024] QCA 250
Decision Date: 10 DECEMBER 2024

CaseChat Overview and Summary

The case of The King v Gray involved the applicant, Tim Justin Gray, who was appealing against his sentence imposed by the sentencing judge. Gray was found guilty of possessing a dangerous drug in excess of two grams, possessing a dangerous drug, and possessing property suspected of having been used in connection with the commission of a drug offence. The applicant was sentenced to two years’ imprisonment for the first count, with a parole release date fixed at 12 March 2025. The applicant was convicted but not further punished for the other counts and the summary charge. The sole ground of appeal was that the sentence imposed was manifestly excessive.

The legal issue the court was required to decide was whether the sentence imposed on both the head sentence and requirement to serve actual time in custody rendered the sentence manifestly excessive. The court noted that the determination of whether a sentence is manifestly excessive is not to be decided by reference to a predetermined range of available sentences, but by reference to all of the factors relevant to sentence. The court considered the sentencing remarks made by the learned sentencing judge and found that the judge had regard to all relevant sentencing factors in ultimately determining that a head sentence of two years with a period of actual custody of four months was appropriate.

The court concluded that the sentence imposed could not be considered manifestly excessive and that leave to appeal should be refused. The facts of the offending revealed that Gray was found in possession of a substantial quantity of drugs, albeit for personal use, and had been sentenced to serve some period of actual imprisonment. The court found that the sentencing judge took into account all relevant sentencing principles and circumstances, and no error had been demonstrated.

The final order of the court was that the application for leave to appeal be refused. The court adjourned the case.

Orders