SUPREME COURT OF QUEENSLAND
CITATION:
R v Campbell [2022] QCA 135
PARTIES:
R
v
CAMPBELL, Allira Jade
(applicant)FILE NO/S:
CA No 114 of 2021
SC No 531 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 4 May 2021 (Williams J)
DELIVERED ON:
2 August 2022
DELIVERED AT:
Brisbane
HEARING DATE:
10 February 2022
JUDGES:
Morrison and Mullins and Bond JJA
ORDERS:
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Set aside the sentence imposed in respect of Count 1 on 4 May 2021.
4. On Count 1 the appellant is re-sentenced to nine years and six months’ imprisonment, to be served cumulatively upon the sentence imposed on 26 July 2017.
5. For the purpose of s 159A(3A) of the Penalties and Sentences Act 1992, declare that the time the appellant was held in custody from 4 December 2019 to 3 May 2021, a total of 517 days, is not to be taken to be imprisonment already served under the sentence.
6. The date the appellant is eligible for parole is fixed at 27 December 2028.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to various offences, the two most serious being trafficking in methylamphetamine and attempting to pervert the course of justice – where the sentences were ordered to be served cumulatively upon an existing sentence – where the overall effect was a sentence of 12 years’ imprisonment – where the applicant seeks leave to appeal against sentence on the basis the sentence is manifestly excessive in all the circumstances – whether there was an error in finding there was no declarable pre-sentence custody – whether appropriate recognition was given to the pre-sentence custody, particularly in the context of a serious violent offence declaration – whether the sentencing judge failed to consider the effect of parole cancellation on the applicant’s current custodial sentence – whether the sentencing judge adequately considered the applicant’s plea of guilty – whether the appeal should be allowed
Corrective Services Act 2006 (Qld), s 182(2), s 209
Penalties and Sentences Act 1992 (Qld), s 9(10), s 156A, s 159AHouse v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, followed
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Armitage; R v Armitage; R v Dean[2021] QCA 185, cited
R v Berns[2020] QCA 36, followed
R v Carlisle[2017] QCA 258, cited
R v Cottell[2009] QCA 398, followed
R v Coutts[2016] QCA 206, cited
R v Degn (2021) 7 QR 190; [2021] QCA 33, followed
R v Ensbey; Ex parte Attorney-General…
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- AGLC
- R v Campbell [2022] QCA 135
- Case
- [2022] QCA 135
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether there was an error in finding there was no declarable pre-sentence custody, whether appropriate recognition was given to the pre-sentence custody, whether the sentencing judge failed to consider the effect of parole cancellation on the applicant’s current custodial sentence, and whether the sentencing judge adequately considered the applicant’s plea of guilty. The court considered the submissions made by both parties on these issues. The Crown argued that the re-sentence would likely result in the same, or a higher, sentence being imposed due to the seriousness of the offending, the sophistication of the operation, and the attempt to pervert the course of justice. The Crown also argued that some amelioration of the sentence was appropriate to reflect the early plea of guilty.
The court found that there was indeed an error in the pre-sentence custody certificate, and it had to be corrected. The court held that the sentencing judge did not adequately consider the effect of parole cancellation on the applicant’s current custodial sentence and did not give appropriate recognition to the pre-sentence custody. The court also found that the sentencing judge did not adequately consider the applicant’s plea of guilty. The court allowed the appeal, set aside the sentence imposed in respect of Count 1, and re-sentenced the applicant to nine years and six months’ imprisonment, to be served cumulatively upon the sentence imposed on 26 July 2017. The court also declared that the time the appellant was held in custody from 4 December 2019 to 3 May 2021 was not to be taken to be imprisonment already served under the sentence.
Orders
Orders of the court
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Set aside the sentence imposed in respect of Count 1 on 4 May 2021.
4. On Count 1 the appellant is re-sentenced to nine years and six months’ imprisonment, to be served cumulatively upon the sentence imposed on 26 July 2017.
5. For the purpose of s 159A(3A) of the Penalties and Sentences Act 1992, declare that the time the appellant was held in custody from 4 December 2019 to 3 May 2021, a total of 517 days, is not to be taken to be imprisonment already served under the sentence.
6. The date the appellant is eligible for parole is fixed at 27 December 2028.
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
For the Crown, Mr Bain submitted that the re-sentence would likely result in the same, or a higher, sentence being imposed. There were several aspects to that submission:(a)the offending was objectively very serious; punishment, personal and general deterrence were important purposes in the sentence;(b)the applicant had committed a serious example of commercial trafficking: carried out over a six-month period; selling wholesale quantities to at least 25 drug dealers; she employed others in the business; an interstate supply network;(c)the operation was sophisticated; cipher phones were used to conceal activities; drugs were sold on credit; enforcement was stern enough to stop short of actual violence; proceeds (over 4120,000) was stored at her mother’s house;(d)the trafficking continued while she was on remand, with debts chased;(e)the prior trafficking conviction was an aggravating factor under s 9(10) of the Penalties and Sentences Act;(f)other offences were serious; the attempt to pervert the course of justice particularly so, as it strikes at the heart of the justice system; the applicant paid $5,000 to someone to lie about an incident where the applicant was evading police; she destroyed evidence and denied access to the phones she used;(g)R v Nunn,[60] R v Rodd; Ex parte Attorney-General (Qld)[61] and R v Berns[62] all supported a start point at 12 years for the trafficking;(h)some amelioration of the sentence is appropriate to reflect the early plea of guilty, to the extent it assisted in the co-operation with the administration of justice;(i)totality is also a relevant feature[63] in arriving at an appropriate sentence as the trafficking count must be served cumulatively with the prior sentence and the applicant had been on remand while serving that sentence; that feature can be reflected by a reduction in the head sentence or a declaration of some of the time spent on remand, or both;(j)a sentencing court is not required to discount the sentence which is otherwise considered appropriate by, for example, reducing it by the precise amount of time the offender has already served under the existing sentence; time an offender is serving in custody under a previously imposed penalty of imprisonment is not generally treated in a like manner to pre-sentence custody on remand, whether that is formally declarable or not;[64] and(k)R v Cottell,[65] Ross v Commissioner of Police[66] and R v Ensbey; Ex parte Attorney-General (Qld)[67] support a cumulative sentence in the order of two years’ imprisonment to reflect the additional criminality on the non-trafficking counts.[60][2019] QCA 100.[61][2008] QCA 341.[62][2020] QCA 36.[63]Mill v The Queen (1988) 166 CLR 59 at 63; Postiglione v The Queen (1997) 189 CLR 295 at 304.[64]R v Berns [2020] QCA 36 at 6-7.[65][2009] QCA 398.[66][2019] QCA 96.[67][2004] QCA 335.Consideration – re-sentence This Court cannot proceed on the basis that the error in the pre-sentence custody certificate can or should be perpetuated. It must be corrected notwithstanding that the error works in favour of the applicant.