R v Brunning - [2018] QCA 263

[2018] QCA 263

COURT OF APPEAL

PHILIPPIDES JA
McMURDO JA
DAVIS J

CA No 140 of 2018
SC No 1322 of 2017

THE QUEEN

BRUNNING, Emily Ann Applicant

BRISBANE

TUESDAY, 9 OCTOBER 2018

JUDGMENT

DAVIS J: The applicant seeks leave to appeal against sentences imposed upon her in the Trial Division. An indictment was presented containing six counts. A nolle prosequi was entered in relation to three counts and the applicant pleaded guilty to one count of possession of a dangerous drug, methylamphetamine, with a circumstance of aggravation: that the quantity exceeded two grams; that was count 1. She also pleaded guilty to one count of possession of a relevant substance, 4-hydroxybutanoic acid, commonly called “GBL”. That was count 5 on the indictment.

The applicant also pleaded guilty to one count of being in possession of three mobile telephones and four clip-seal bags, being things possessed for use in connection with the commission of the crime of supplying a dangerous drug. The applicant, though, was not convicted of any counts of supply.

All three offences to which she pleaded guilty were committed on 16 July 2016. The applicant was sentenced on 9 March 2018, having pleaded guilty on 6 March 2018. On count 1, the applicant was sentenced to a term of imprisonment of two years and two months. On the other two counts, she was convicted but not further punished.

The applicant spent 45 days in pre-sentence custody which could not be declared as time served on the sentences imposed, as the applicant was being held on remand on other charges. The learned sentencing judge did, though, take the pre-sentence custody into account when assessing sentence.

22 January 2019 was set as the date that the applicant is eligible for parole. That date is eight months from the date of the sentence. Taking into account time served, the effect of the sentences is that the applicant will serve about nine and a half months before being eligible for parole.

A date was set for parole eligibility rather than for release on parole as the commission of the current offences breached an existing parole order. It is not contested on appeal that, pursuant to s 160D of the Penalties and Sentences Act 1992 (Qld), as the offences were committed on parole the effect of the conviction was to cancel that parole automatically with the result that a parole release date could not be set. Any parole order would have to be the setting of an eligibility date. See R v Bliss [2015] QCA 53 and R v Hall [2018] QSC 101.

All three offences arose from the one episode. Police intercepted a motor vehicle driven by a male person in which the applicant was travelling as a passenger. The applicant asserted that the car was hers, she having bought it for $500. A search of the vehicle was conducted. In the car was the GBL which was the subject of count 5.

The applicant was arrested and taken…

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 Brunning

Details

AGLC: R v Brunning [2018] QCA 263
Case: [2018] QCA 263
Decision Date: 9 OCTOBER 2018

CaseChat Overview and Summary

In the case of R v Brunning, the applicant sought leave to appeal against the sentences imposed upon her in the Trial Division. The applicant, Emily Ann Brunning, was charged with six counts under an indictment; however, a nolle prosequi was entered in relation to three counts. Brunning pleaded guilty to one count of possession of a dangerous drug, methylamphetamine, with an aggravating circumstance that the quantity exceeded two grams, and to one count of possession of a relevant substance, 4-hydroxybutanoic acid (GBL). She also pleaded guilty to possessing three mobile telephones and four clip-seal bags, which were used in connection with the commission of the crime of supplying a dangerous drug. The applicant argued that her sentence was excessive and that the learned sentencing judge made errors in considering her post-offence criminal history and in setting a parole eligibility date instead of a suspended sentence.

The legal issues before the Court of Appeal were whether the applicant's sentence was manifestly excessive, if the sentencing judge erred in considering her post-offence criminal history, and if the decision to set a parole eligibility date instead of a suspended sentence was appropriate. The Court of Appeal found that the applicant's sentence was not manifestly excessive, as the sentencing judge took into account the applicant's history of drug offending, the significant quantity and value of the drugs possessed, and her remorse and cooperation with the administration of justice. The Court also found that the sentencing judge did not err in considering the applicant's post-offence criminal history, as it demonstrated that the applicant had a significant drug problem. Lastly, the Court held that the decision to set a parole eligibility date instead of a suspended sentence was appropriate, given the applicant's ongoing offending history and the need for the community to be protected.

In conclusion, the Court of Appeal dismissed the applicant's application for leave to appeal against her sentences. The Court found that the applicant's sentence was not manifestly excessive, the sentencing judge did not err in considering her post-offence criminal history, and the decision to set a parole eligibility date instead of a suspended sentence was appropriate. The Court's order was that the application was dismissed, and the applicant's sentences would stand as imposed by the Trial Division.

Orders