R v Clare - [1999] QCA 227

99.227

COURT OF APPEAL

McMURDO P PINCUS JA THOMAS JA

CA No 79 of 1999
THE QUEEN
v.

WILLIAM LEVI CLARE

Applicant

BRISBANE
..DATE 17/06/99
170699 T17/JB M/T COA135/99
THE PRESIDENT: The applicant pleaded guilty in the
Brisbane Supreme Court on 18 February 1999 to three
counts of supplying a dangerous drug methylamphetamine,
one count of supplying a dangerous drug heroin, one
count of supplying a dangerous drug methylamphetamine
with a circumstance of aggravation that it was supplied
within a correctional institution, three counts of
receiving stolen property and one count of possession of
property obtained from supplying a dangerous drug.

In respect of all counts of supplying drugs, the applicant was sentenced to three years' imprisonment. In respect of the remaining counts, he was sentenced to two years' imprisonment. The terms of imprisonment were concurrent with each other but cumulative upon the sentence the applicant was currently serving. His Honour recommended early parole in these terms:

"... after 12 months from the termination of the

sentence that you are now serving, so that
consideration takes place as early as maybe 12
months after the appropriate time when you would
otherwise have been released from prison apart from
these charges."

The applicant is 54 years of age and has a significant criminal history commencing with a conviction for stealing in 1965 and convictions for other minor property offences in 1986 and 1988. More importantly, he was sentenced to three years' imprisonment in the Toowoomba Magistrates Court in 1991 for possession of a motor vehicle with intent to deprive, although this was reduced to two years' imprisonment on appeal. In 1993 170699 T17/JB M/T COA135/99

he was sentenced to six years' imprisonment for
possession of a dangerous drug.

The applicant was released on parole on 23 December 1996 after serving three years and three months of that sentence. On 17 February 1997 he was charged with these offences and was granted bail. The applicant failed to appear before the Parole Board to show cause why his parole should not be cancelled or suspended and on 24 April 1997 his parole was suspended under s.185 Corrective Services Act. A warrant was issued for his arrest. He has been in custody again since 30 April 1997.

As at the date of sentence he had served four years 11 months and 24 days of that sentence, a period which excludes the time he was on parole in the community.

The first three offences occurred whilst the applicant was a prisoner on work release: the applicant sold an ounce of methylamphetamine for $1,000 to another prisoner on three separate occasions, twice outside the Kennigo Community Correctional Centre where he was an inmate and once inside the centre.

After release on home detention, he sold methylamphetamine to the same prisoner on a further four occasions for a total of $2,000. He later supplied a little over 13 grams of heroin, of which approximately 7 grams was pure, to a police undercover officer for 170699 T17/JB M/T…

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 Clare

Details

AGLC: R v Clare [1999] QCA 227
Case: [1999] QCA 227
Decision Date: 17/06/1999

CaseChat Overview and Summary

In the case of R v Clare, the applicant, William Levi Clare, pleaded guilty in the Brisbane Supreme Court to various drug supply and property offences. The Court was tasked with determining whether the sentence imposed on Clare, which included a recommendation for parole after a specific period, was manifestly excessive. Clare had a significant criminal history and was serving a sentence for possession of a dangerous drug before committing the current offences while on parole. The court had to consider whether the cumulative sentence, which included a parole recommendation, was appropriate given the seriousness of the new offences and Clare's history of parole violations.

The primary legal issue before the Court of Appeal was whether the sentence, which amounted to a total of nine years with a parole recommendation after seven years, was manifestly excessive. The Court had to weigh the seriousness of Clare's actions, which included drug dealing while on parole and receiving stolen property, against the mitigating factors such as his plea of guilty and his ill health. The Court also considered whether the parole recommendation was permissible under the Corrective Services Act 1988. The reasoning of the Court was that Clare's conduct was extremely serious, involving professional-level drug dealing and theft, and that the sentence, including the parole recommendation, was not manifestly excessive given the totality of the circumstances.

The Court of Appeal, consisting of McMurdo P, Pincus JA, and Thomas JA, unanimously decided to refuse the application for leave to appeal. The judges agreed that the sentence, while unusual, was not manifestly excessive. They noted that the parole recommendation, while not typical, was a permissible exercise of the sentencing discretion, especially given Clare's breach of parole. The judges also considered the totality principle in their decision, ensuring that the sentence reflected the seriousness of the offences and the need to deter future criminal conduct. The Court concluded that the sentence imposed was appropriate and did not warrant interference from the appellate court. The final order was that the application for leave to appeal against the sentence was refused.

Orders