SUPREME COURT OF QUEENSLAND
CITATION:
R v Castner [2018] QCA 265
PARTIES:
R
v
CASTNER, Rebecca Teresa
(applicant)FILE NO/S:
CA No 178 of 2017
SC No 992 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 13 July 2017 (Bowskill J)
DELIVERED ON:
12 October 2018
DELIVERED AT:
Brisbane
HEARING DATE:
31 July 2018
JUDGES:
Philippides JA and Brown and Ryan JJ
ORDER:
The application for leave to appeal is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to trafficking in dangerous drugs (count 1); possessing property obtained from trafficking (counts 14 and 15); possessing a dangerous drug (count 16); and possessing a thing for use in connection with trafficking in a dangerous drug (count 17); and three summary offences – where the applicant was sentenced to ten years’ imprisonment on the count of trafficking in dangerous drugs and convicted but not further punished on each of the remaining counts and charges – where the applicant contends that the sentence was manifestly excessive, given the applicant’s demonstrated remorse and prospects of rehabilitation – where the Crown submits that the sentence imposed contained no error and is supported by case authority – whether the sentence is so unreasonable or plainly unjust in the circumstances as to give rise to an inference that the discretion has miscarried
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
R v Abbott[2017] QCA 57, considered
R v Barker[2015] QCA 215, considered
R v Bost[2014] QCA 264, cited
R v Feakes[2009] QCA 376, considered
R v McGinniss[2015] QCA 34, considered
R v Prendergast[2012] QCA 164, citedCOUNSEL:
D S Caruana for the applicant
J D Finch for the respondentSOLICITORS:
Russo Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
PHILIPPIDES JA: For the reasons given by Brown J, I agree that the application for leave to appeal should be refused.
BROWN J: The applicant, Rebecca Teresa Castner, seeks leave to appeal the sentence imposed in the Supreme Court of Queensland following her plea of guilty on 13 July 2017 to the following offences: trafficking in dangerous drugs (count 1); possessing property obtained from trafficking (counts 14 and 15); possessing a dangerous drug (count 16); and possessing a thing for use in connection with trafficking in a dangerous drug (count 17); and three summary offences.
The learned sentencing judge sentenced the applicant to ten years’ imprisonment[1] on the count of trafficking in dangerous drugs, and ordered that the applicant be convicted but not further punished on each of the remaining counts and charges. The applicant contends that the sentence is manifestly excessive. The Crown submits that the sentence imposed contained no error and is supported by case authority.
[1]With the result that the applicant…
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- AGLC
- R v Castner [2018] QCA 265
- Case
- [2018] QCA 265
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the sentence imposed was so unreasonable or plainly unjust in the circumstances as to give rise to an inference that the discretion had miscarried. The court found that the sentence imposed in respect of the trafficking count was within the sentencing discretion of the sentencing judge. The court noted that the sentencing judge had considered the applicant's rehabilitation and remorse in her reasons and had moderated the sentence imposed to ten years. The court also found that the sentencing judge's scepticism as to whether the applicant's plea of guilty genuinely indicated remorse and in respect of some of the matters outlined by the psychologist said to indicate remorse were findings that were open to her Honour when assessed against the circumstances surrounding the applicant's offending.
The court refused the application for leave to appeal against the sentence. The court found that the sentence imposed was within the sentencing discretion of the sentencing judge and that the applicant had not shown that the sentence was so unreasonable or plainly unjust in the circumstances as to give rise to an inference that the discretion had miscarried. The court noted that the sentencing judge had considered the applicant's rehabilitation and remorse in her reasons and had moderated the sentence imposed to ten years. The court also found that the sentencing judge's scepticism as to whether the applicant's plea of guilty genuinely indicated remorse and in respect of some of the matters outlined by the psychologist said to indicate remorse were findings that were open to her Honour when assessed against the circumstances surrounding the applicant's offending.
Orders
Orders of the court
The application for leave to appeal is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Based on the Crown’s analysis of the cases relied upon by her Honour and the applicant, the Crown submitted that the sentence was well within the sentencing discretion. It further referred to a decision of R v McGinniss,[12] as providing further support for the sentence imposed.[12][2015] QCA 34.Consideration In an application for leave to appeal against sentence, it is not sufficient for the applicant to show that another sentence may be open to a sentencing judge. Rather, it is necessary to show that the sentence is so unreasonable or plainly unjust in the circumstances as to give rise to an inference that the discretion has miscarried.[13][13]House v The King (1936) 55 CLR 499 at 504 to 505. See for example: R v Ikin [2007] QCA 224 at p 6, per Keane JA (as his Honour then was). The difficulty for the applicant is that her Honour considered both the applicant’s rehabilitation and remorse in her reasons and indeed considered that a sentence in the realm of 12 to 13 years’ imprisonment could have been appropriate if it were not for the mitigating circumstances. Her Honour accepted the mitigating circumstances and moderated the sentence imposed to ten years. Her Honour’s scepticism as to whether the applicant’s plea of guilty genuinely indicated remorse and in respect of some of the matters outlined by the psychologist said to indicate remorse as well as her Honour’s scepticism about the apparent awakening that the applicant had experienced since being arrested and spending time in custody were findings that were open to her Honour when assessed against the circumstances surrounding the applicant’s offending as outlined in the agreed schedule of facts. In particular, the schedule of facts demonstrated that the applicant aggressively headed up the drug trafficking operation. She was originally in partnership with Dean Lacey until he was incarcerated, after which she paid his debts and took over the business. The applicant then made it clear in a number of phone calls to other defendants, suppliers and customers that she was in charge. She was prepared to encourage employees to use stand-over tactics in order to get paid and continued to traffic notwithstanding that she had been charged with drug offences to which she had pleaded guilty. She paid her employees by providing them with drugs as well as accommodation. She had sought to evade police by moving to a hotel resort to continue trafficking when she heard her house was to be raided. This conduct does not sit easily with the applicant claiming that she only realised the damaging effect of drugs while in custody and that she thought she had been helping to comfort others in need while supplying them. The applicant stated to the psychologist that her time in custody had brought her face to face with many women who were victims of drug addiction and that she was horrified to see the state of their health. However, that sits uneasily with what the applicant told the psychologist about her other daughter who had started to use marijuana from the age of 14 and had a growing need for self-medication for depression.[14] The applicant stated that after her divorce from her abusive husband in 2003, her daughter’s depression deepened; her “mental health condition deteriorated and her addiction worsened,” such that the applicant became her sole carer. As such, the applicant’s apparent awakening when she saw women who had been victims of drug addiction in jail and the state of their mental health could properly give rise to scepticism, given what was happening to the applicant’s daughter before her very eyes.[14]AB 261 at subparagraphs (n), (o) and (q).