The Queen v Kopjar - [2021] QCA 219

[2021] QCA 219

COURT OF APPEAL

FRASER JA
McMURDO JA
MULLINS JA

CA No 110 of 2021
SC No 532 of 2021

THE QUEEN

KOPJAR, Nathaniel Applicant

BRISBANE

MONDAY, 11 OCTOBER 2021

JUDGMENT

FRASER JA: The applicant was sentenced to 18 months’ imprisonment upon one count of possession of dangerous drugs in excess of two grams and concurrent terms of one month imprisonment on four counts of possession of a dangerous drug, with immediate release on parole. He contends that a shorter term of imprisonment should have been imposed, and there should have been an order suspending the whole period of imprisonment for an operational period of four years instead of the order for release on parole.

The applicant was 30 at the time of the offences. He did not have a criminal record. He had a traffic history which included many speeding offences, most of which concerned exceeding the speed limit by a relatively small margin. The sentencing judge considered that this might be regarded as indicating he needed supervision upon release into the community.

The applicant was arrested near the location of an arts and music festival at which he intended to consume the drugs found in his possession. Upon a search of the applicant and his car, police found the following dangerous drugs in various clipseal bags and other containers: 3.298 grams of MDMA (count 1); 1.969 grams of cocaine (count 2); 2.115 grams of psilocybin mushrooms (count 3); 2 grams of cannabis (count 4); and 58 millimetres in two bottles of cannabinol oil (count 5).

The sentence proceeded upon the basis that all of the drugs were for the personal use of the applicant. In the period of about 17 months between the applicant’s arrest and the sentence hearing he undertook nine urine tests, which were accepted as establishing he had not used dangerous drugs in that period. The sentencing judge took this into account as demonstrating the applicant had made efforts to rehabilitate. The sentencing judge also took into account references in favour of the applicant, which, supported the same finding and, indicated that employment would be provided to the applicant.

The applicant is a Canadian citizen who arrived in Australia about five years before he committed these offences and has a permanent right of residence in Australia. He stopped work about 12 to 15 months before he committed the offences to care for his ill partner, who died about seven months before the applicant committed the offences.

The sentencing judge acknowledged that because the applicant was a Canadian citizen, he would possibly be subject to further consideration by the relevant Minister after the sentence was imposed. The applicant’s counsel had originally submitted that if the applicant was sentenced to 12 months’ imprisonment or more with no actual custodial component, he would fail the character test in the Migration Act1958 and may be subject to the revocation of his visa by the Minister. It was submitted that if the applicant’s visa were cancelled,…

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 Queen v Kopjar

Details

AGLC: The Queen v Kopjar [2021] QCA 219
Case: [2021] QCA 219
Decision Date: 11 OCTOBER 2021

CaseChat Overview and Summary

In The Queen v Kopjar, the applicant challenged the sentence of 18 months' imprisonment imposed on him for possession of dangerous drugs, contending that it should have been shorter and that the order for release on parole should have been replaced by a suspended term of imprisonment. The applicant, a 30-year-old Canadian citizen with no criminal record, had been arrested at an arts and music festival where he intended to consume the drugs found in his possession. The sentencing judge had considered the applicant's personal circumstances, including his care for his ill partner who had recently passed away, and his efforts to rehabilitate by passing nine urine tests over a period of about 17 months. The judge also took into account the possibility that the applicant might be subject to further consideration by the relevant Minister after the sentence was imposed.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the sentencing judge had erred in imposing a term of imprisonment instead of a suspended sentence. The court considered the variety and quantities of dangerous drugs possessed by the applicant and the mitigating factors, such as his efforts to rehabilitate and the possibility of deportation, which had been adequately taken into account. The court also noted that the sentence was consistent with other cases involving possession of dangerous drugs.

The court found that the sentencing judge had not erred in imposing the sentence, as it was within the appropriate range for the offences committed. The court held that the applicant could only establish his ground of appeal if it could be concluded that there had been a misapplication of principle. However, the court found no such conclusion was open in the circumstances of this case, as the sentence was not manifestly excessive.

The appeal against the sentence was dismissed, with all three judges concurring in the decision. The court held that the sentence imposed was not manifestly excessive and that the sentencing judge had adequately considered the relevant factors in reaching their decision.

Orders