R 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

v

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 Act 1958 and may be subject to the revocation of his visa by the Minister.  It was submitted that if the applicant’s visa were cancelled, he would suffer prejudice, having regard to the circle of friends he had developed through his partner and the fact that his partner was buried in Australia.  In oral submissions at the sentence hearing, however, the applicant’s counsel made it clear that the applicant did not contend that the possibility of deportation would be a relevant consideration if the sentencing judge did not impose an actual term of imprisonment.

The applicant contends that the sentencing judge did not place sufficient weight on the factors in favour of the applicant, particularly the applicant’s personal circumstances leading to the offending, his rehabilitation and the burden upon the applicant of the possibility of deportation.  As is submitted for the applicant, the sentencing judge did not expressly advert to the personal grief experienced by the applicant, which was submitted to have led to or exacerbated his drug use, or to the evidence that it would place a particularly heavy burden upon the applicant if he were deported.  There is, however, no reason to doubt the statement by the sentencing judge that he had considered the applicant’s history.

The sentencing judge expressly took into account the applicant’s efforts to rehabilitate and the possibility that he might be subject to further consideration by the Minister upon sentences being imposed upon him.  Further, in relation to the prospect of deportation, subsections 501(2) and (3) of the Migration Act confer a discretion upon the Minister to cancel the applicant’s visa if the Minister reasonably suspects the applicant does not satisfy the character test.  There is no evidence about the manner in which the Minister might exercise that discretion.  Deportation is therefore merely a speculative possibility, with the consequence that hardship arising from deportation could not properly be taken into account; see R v Norris; Ex parte Attorney-General (Qld) [2018] 3 Qd R 420 at [11]- [14], [19], [39] -[41] and [47].  The applicant’s counsel at the sentence hearing appropriately abandoned this point.

Having regard in particular to the variety and quantities of dangerous drugs possessed by the applicant and the circumstance that at 30 years of age the applicant was not entitled to that degree of leniency afforded to youthful first offenders, it could not reasonably be concluded that the term of 18 months’ imprisonment renders the sentence excessive.  Notwithstanding the inevitable variations in the circumstances of each case, the sentence derives support from the same term of imprisonment imposed in R v Donaci [2018] QCA 226, R v Warren [2014] QCA 175 and R v Harrison [2018] QCA 94.

The mitigating factors were adequately taken into account in the order for immediate release on parole.

It was submitted for the applicant that it was open to the sentencing judge to impose a suspended term of imprisonment instead of parole.  The question for this Court though, is whether or not there was any error in the exercise of sentencing discretion.  It was plainly open to the sentencing judge to conclude that in offences of this nature, involving possession of dangerous drugs, it was preferable to impose a sentence that allowed for supervision within the community.

The applicant could establish his ground of the proposed appeal only if “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.”  See R v Pham (2015) 256 CLR 550 at [28].  No such conclusion is open in the circumstances of this application.  The sentence is not manifestly excessive.

I would dismiss the application for leave to appeal against sentence.

McMURDO JA:  I agree.

MULLINS JA:  I agree.