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- Unreported Judgment
Raptis v Commissioner of Police QDC 94
DISTRICT COURT OF QUEENSLAND
Raptis v Commissioner of Police  QDC 94
Alex Michael Raptis
Commissioner of Police
22 January 2016; ex tempore
22 January 2016
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant argued Learned Magistrate placed too much weight on past drug offences – where appellant argued the penalty imposed was manifestly excessive – whether the penalty imposed was manifestly excessive.
S McGee for the Appellant
Legal Aid Queensland for the Appellant
N E Friedewald, Office of the Director of Public Prosecutions for the Respondent
- All right. I’ll deal firstly with the application to lead further evidence before turning to the appeal. New or further evidence on appeal is only admitted in exceptional circumstances where it’s in the interests of justice to do so. Here, that affidavit material could have been put before the sentencing Magistrate, but perhaps more importantly, in my view, there’s no significant possibility that it would have affected the result. As I understand it, the material is consistent with submissions put before the learned Magistrate and not contested by the police Prosecutor and apparently accepted by the Magistrate.
- Turning now to the appeal: this is an appeal against a sentence imposed on the 27th of May 2015 by Magistrate Costello on the ground that it is manifestly excessive in the circumstances. The offences that Mr Raptis pleaded guilty to were possessing dangerous drugs – a small quantity of MDMA, less than one gram total weight, although the purity of that substance was not tested; and an offence, that occurred on the same occasion, of obstructing police.
- On appeal against an exercise of discretion, the principles that are outlined in the case of House v The King (1936) HCA 40 apply. It’s not enough that Judges composing the appellate Court consider that if they’d been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. The determination should be reviewed, and the Court may exercise its own discretion, if the Judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect him or her, mistakes the facts or does not take into account some material consideration. Sometimes error will not be manifest except by a result which is, on the facts, unreasonable or plainly unjust, in which case the appellate Court may infer that in some way there has been a failure to properly exercise the discretion at first instance. In that case, the appellate Court is interfering and reviewing the exercise of discretion on the ground that a substantial wrong has in fact occurred. It is really the last of those principles that has the most relevance to this sentence. Can I infer from the sentence imposed that there must have been a failure properly to exercise the discretion at first instance? I am not satisfied of that.
- There were circumstances placed before his Honour that justified him giving primacy to rehabilitation in his considerations on sentence. The Magistrate’s sentencing remarks are short, concise, but so was the sentence hearing itself. I’ve had regard to the material, not only in the form of a transcript but also the letters provided by the psychologist, Diana Peterson, dated the 28th of February 2013 and the 19th of May 2015. Those letters show that the appellant was both in need of and actively experiencing psychological intervention for treatment of depression, anxiety and anger over a lengthy period.
- In fact, the period of the treatment seems to span the period that he had offended: firstly, when he possessed cannabis and instructions about producing cannabis; and then secondly when he offended by the possession of the MDMA. His Honour noted that earlier offence, which included a drug diversion program, which apparently the appellant had completed without any incident. Yet two years down the track, here he was back before the Court with another drug offence. It is fair to say that his drug offending had escalated, because it was a more serious substance he was in possession of on the second occasion, being ecstasy – MDMA.
- I may well have imposed a different sentence. I may well have imposed a shorter period of probation. However, I’m not persuaded either that probation was inappropriate or so outside the range of appropriate penalties for this offence that there is any manifest error in the sentence. Nor do I think the period of the probation order is manifestly excessive. It is clear that his Honour was conscious of the length of the probation order, but considered it necessary.
- He had before him the letter supporting the submission that was made to his Honour that the appellant suffered from anxiety and depression and had been utilising substances to help him deal with that. As such, it was open to his Honour to conclude that a longer period on probation and, therefore, a longer period of access to drug rehabilitation programs that would be provided by Corrective Services, was appropriate. Whilst I might have imposed a shorter period, I am not persuaded that the sentence imposed by his Honour was manifestly excessive. I dismiss the appeal.
- Published Case Name:
Raptis v Commissioner of Police
- Shortened Case Name:
Raptis v Commissioner of Police
 QDC 94
22 Jan 2016