R v Burge - [2004] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burge [2004] QCA 161

PARTIES:

R
v
BURGE, Kassandra Louise
(applicant/appellant)

FILE NO/S:

CA No 63 of 2004
SC No 5 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED EX TEMPORE ON:

13 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2004

JUDGES:

McMurdo P, Jerrard JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to appeal against sentence granted

2.   Appeal against sentence allowed

3.   Sentence imposed at first instance varied by ordering that it be suspended after 9 months instead of 18 months

4.   Otherwise confirm the sentence that was imposed, including the declaration as to pre-sentence custody

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT- SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER –applicant was sentenced to three years suspended after eighteen months for an operational period of three years for trafficking methylamphetamine – applicant’s role in the trafficking was ancillary to that of her de facto - application for leave to appeal against sentence on the basis that it was manifestly excessive – whether the learned sentencing judge gave sufficient weight to the applicant's circumstances including her youth, her addiction, her dependence on her de facto as her supplier of drugs and her position in a violent and abusive relationship from which it was difficult to remove herself

R v Dalton [2002] QCA 108; CA No 296 of 2001, 21 March 2002, considered
R v Diem Mac Le [1995] QCA 479, CA No 292 of 1995, 27 October 1995, considered
R v Fry [2000] QCA 89; CA No 397 of 1999, 21 March 2000, considered
R v McMahon [2003] QCA 369; CA No 199 of 2003, 27 August 2003, considered
R v Osland (1998) 197 CLR 316, cited
R v Zeremes [2003] QCA 255; CA No 136 of 2003, 18 June 2003, considered

COUNSEL:

B G Devereaux for the applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS J: On 3 March 2004 the applicant pleaded guilty to one count of trafficking in the dangerous drug methylamphetamine between 8 October 2002 and 23 September 2003 and one count of possessing things for use in connection with the commission of a crime. This application for leave to appeal against sentence is directed at the sentence of three years imprisonment to be suspended after a period of 18 months for an operational period of three years that was imposed in respect of the trafficking. A declaration was made in respect of 15 days pre-sentence custody.

The applicant was born on 23 March 1984. The trafficking was committed when she was between 18 years and 19 years old. From about the age of 15 or 16 years the…

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 Burge

Details

AGLC: R v Burge [2004] QCA 161
Case: [2004] QCA 161
Decision Date: 13 May 2004

CaseChat Overview and Summary

In the Supreme Court of Queensland, the applicant, Burge, applied for leave to appeal against a sentence imposed for drug trafficking. Burge was sentenced to three years imprisonment, suspended after eighteen months for an operational period of three years, for trafficking methylamphetamine. The applicant's role in the trafficking was secondary to that of her de facto. Burge contended that the sentence was manifestly excessive and sought leave to appeal on the grounds that the learned sentencing judge did not sufficiently consider her circumstances, including her youth, drug addiction, dependence on her de facto as her supplier, and the difficulty in leaving a violent and abusive relationship.

The court had to determine whether the sentencing judge appropriately considered the applicant's personal circumstances in fashioning the sentence. The court examined the sentencing principles outlined in the relevant legislation and case law. It considered whether the sentence imposed was manifestly excessive and whether the sentencing judge had given insufficient weight to the mitigating factors presented by Burge. The court further assessed whether the sentence imposed was appropriate in all the circumstances of the case, taking into account the relevant mitigating factors.

The court granted the application for leave to appeal and allowed the appeal against sentence. It found that the sentence was manifestly excessive due to the sentencing judge's insufficient consideration of Burge's personal circumstances, particularly her youth, addiction, and difficult relationship. The court varied the sentence by ordering that it be suspended after nine months instead of eighteen months, while confirming the rest of the sentence, including the declaration as to pre-sentence custody.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal against sentence allowed

3. Sentence imposed at first instance varied by ordering that it be suspended after 9 months instead of 18 months

4. Otherwise confirm the sentence that was imposed, including the declaration as to pre-sentence custody

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Burge [2004] QCA 161
PARTIES:	R v BURGE, Kassandra Louise (applicant/appellant)
FILE NO/S:	CA No 63 of 2004 SC No 5 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Toowoomba
DELIVERED EX TEMPORE ON:	13 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2004
JUDGES:	McMurdo P, Jerrard JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal against sentence allowed 3. Sentence imposed at first instance varied by ordering that it be suspended after 9 months instead of 18 months 4. Otherwise confirm the sentence that was imposed, including the declaration as to pre-sentence custody
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT- SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER –applicant was sentenced to three years suspended after eighteen months for an operational period of three years for trafficking methylamphetamine – applicant’s role in the trafficking was ancillary to that of her de facto - application for leave to appeal against sentence on the basis that it was manifestly excessive – whether the learned sentencing judge gave sufficient weight to the applicant's circumstances including her youth, her addiction, her dependence on her de facto as her supplier of drugs and her position in a violent and abusive relationship from which it was difficult to remove herself R v Dalton [2002] QCA 108; CA No 296 of 2001, 21 March 2002, considered R v Diem Mac Le [1995] QCA 479, CA No 292 of 1995, 27 October 1995, considered R v Fry [2000] QCA 89; CA No 397 of 1999, 21 March 2000, considered R v McMahon [2003] QCA 369; CA No 199 of 2003, 27 August 2003, considered R v Osland (1998) 197 CLR 316, cited R v Zeremes [2003] QCA 255; CA No 136 of 2003, 18 June 2003, considered
COUNSEL:	B G Devereaux for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent