R v Barratt - [2014] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barratt [2014] QCA 227

PARTIES:

R
v
BARRATT, Julie Louise
(applicant)

FILE NO/S:

CA No 95 of 2014
DC No 3 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

11 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2014

JUDGES:

Holmes JA and Ann Lyons and Flanagan JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Leave to appeal is refused.

2. The court order sheet and verdict and judgment record are to be corrected to record the sentences on counts 3 and 4 as three months’ imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to one count of possession of cannabis in excess of 500 grams, one count of possession of cannabis simpliciter and one count of possession of diazepam – where, for the first offence, the applicant was sentenced to 18 months’ imprisonment, suspended after six months with an operational period of three years – where, for each of the other counts, concurrent sentences of three months’ imprisonment were imposed – where the applicant did not co-operate with the authorities other than by her plea of guilty – where the applicant has a previous criminal history involving possession of cannabis – where the applicant had gone to significant effort to procure the cannabis and stood to receive some commercial gain from the offending – where the sentencing judge made remarks suggesting that the interception of the applicant was not coincidental and observed that the applicant had tried to avoid detection – where the applicant has a mental illness – where the applicant’s general practitioner indicated that her disorder was controlled on medication but that imprisonment would be detrimental to her – whether the sentencing judge's comments about the applicant's interception and attempt to avoid detection amounted to taking into account irrelevant considerations – whether the sentencing judge took the applicant's mental illness into account in imposing a custodial sentence – whether the sentence was manifestly excessive

R v Batemberski[2000] QCA 475, considered
R v Clarke [1995] QCA 111, considered
R v Kalaja[2002] QCA 508, considered
R v Klumper[2004] QCA 375, considered
R v Smith[2005] QCA 398, distinguished
R v Tsiaris [1996] 1 VR 398; [1996] VicRp 26, cited
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, distinguished

COUNSEL:

A J Glynn QC, with W Pennell, for the applicant
B J Power for the respondent

SOLICITORS:

Shades of Gray Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant for leave to appeal against sentence was convicted on her own plea of guilty of one count of possession…

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 Barratt

Details

AGLC: R v Barratt [2014] QCA 227
Case: [2014] QCA 227
Decision Date: 11 September 2014

CaseChat Overview and Summary

The case of R v Barratt involved the applicant, who had pleaded guilty to possession of cannabis exceeding 500 grams, possession of cannabis, and possession of diazepam. The applicant was sentenced to 18 months’ imprisonment, suspended after six months with a three-year operational period for the first count, and concurrent three-month sentences for each of the other counts. The applicant appealed against the sentence, arguing it was manifestly excessive and that the sentencing judge had taken into account irrelevant considerations and failed to consider her mental illness.

The legal issues before the court were whether the sentencing judge had considered irrelevant factors and failed to take into account the applicant's mental illness when imposing a custodial sentence, and whether the sentence was manifestly excessive. The applicant contended that her interception and attempt to avoid detection were coincidental and that imprisonment would exacerbate her mental illness. The sentencing judge had suggested the interception was not coincidental and had taken into account the applicant's commercial gain from the offending.

The court found that the sentencing judge had not erred in taking into account the applicant's interception and attempt to avoid detection as relevant considerations. The court concluded that the sentencing judge had appropriately weighed the relevant factors, including the applicant's commercial gain and previous criminal history, and had considered the applicant's mental illness, noting the detrimental effects of imprisonment. The court found the sentence was not manifestly excessive, taking into account the totality of the offending and the applicant's criminal history. The appeal against sentence was dismissed.

The court ordered that leave to appeal be refused and directed that the court order sheet and verdict and judgment record be corrected to reflect the correct sentences for counts 3 and 4 as three months’ imprisonment.

Orders

Orders of the court

1. Leave to appeal is refused.

2. The court order sheet and verdict and judgment record are to be corrected to record the sentences on counts 3 and 4 as three months’ imprisonment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Barratt [2014] QCA 227
PARTIES:	R v BARRATT, Julie Louise (applicant)
FILE NO/S:	CA No 95 of 2014 DC No 3 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	11 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2014
JUDGES:	Holmes JA and Ann Lyons and Flanagan JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave to appeal is refused. 2. The court order sheet and verdict and judgment record are to be corrected to record the sentences on counts 3 and 4 as three months’ imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to one count of possession of cannabis in excess of 500 grams, one count of possession of cannabis simpliciter and one count of possession of diazepam – where, for the first offence, the applicant was sentenced to 18 months’ imprisonment, suspended after six months with an operational period of three years – where, for each of the other counts, concurrent sentences of three months’ imprisonment were imposed – where the applicant did not co-operate with the authorities other than by her plea of guilty – where the applicant has a previous criminal history involving possession of cannabis – where the applicant had gone to significant effort to procure the cannabis and stood to receive some commercial gain from the offending – where the sentencing judge made remarks suggesting that the interception of the applicant was not coincidental and observed that the applicant had tried to avoid detection – where the applicant has a mental illness – where the applicant’s general practitioner indicated that her disorder was controlled on medication but that imprisonment would be detrimental to her – whether the sentencing judge's comments about the applicant's interception and attempt to avoid detection amounted to taking into account irrelevant considerations – whether the sentencing judge took the applicant's mental illness into account in imposing a custodial sentence – whether the sentence was manifestly excessive R v Batemberski[2000] QCA 475, considered R v Clarke [1995] QCA 111, considered R v Kalaja[2002] QCA 508, considered R v Klumper[2004] QCA 375, considered R v Smith[2005] QCA 398, distinguished R v Tsiaris [1996] 1 VR 398; [1996] VicRp 26, cited R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, distinguished
COUNSEL:	A J Glynn QC, with W Pennell, for the applicant B J Power for the respondent
SOLICITORS:	Shades of Gray Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent