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R v Clark

R v Clark

Case [2016] QCA 173 24 June 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Clark [2016] QCA 173

PARTIES:

R
v
CLARK, Aimee Eileen
(applicant)

FILE NO/S:

CA No 292 of 2015
SC No 68 of 2015
SC No 74 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 19 November 2015

DELIVERED ON:

24 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2016

JUDGES:

Margaret McMurdo P and Morrison JA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

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 one count of trafficking in a dangerous drug, and to two summary charges of possessing a dangerous drug, and possessing a pipe that was used in the connection with the use of a dangerous drug – where the applicant was sentenced to three years imprisonment and, pursuant to s 5(2) of the Drugs Misuse Act 1986 (Qld), was ordered to serve a minimum of 80 per cent of that term – where the summary charges attracted a sentence of one month imprisonment each, to be served concurrently with the trafficking sentence – where the applicant was identified through a covert police operation that brought to light that the applicant was dealing in methylamphetamine at a street level – where the applicant has two children and a good work history – where the applicant had a clean criminal history until 2013 when she was charged with the possession of dangerous drugs and was further charged over the following two years with drug related charges – where the applicant alleges that she started using drugs as a result of the death of her infant child to sudden infant death syndrome – where the applicant had previously performed “unsatisfactorily” as described in a probation report, by failing to attend counselling and using drugs whilst on probation – where the learned sentencing judge concluded that the applicant’s prospects of rehabilitation were low – where the applicant contends that the learned sentencing judge should have ordered a partially suspended sentence – where the applicant contends that the learned sentencing judge should have set the head sentence at three years, suspended after 12 months, with an operational period of three years – whether the sentence was manifestly excessive

Drugs Misuse Act 1986 (Qld), s 5, s 5(2), s 5(3)(b)
Justice and Other Legislation Amendment Act 2013 (Qld), s 68B
Penalties and Sentences Act 1992 (Qld), s 9(2), s 13, s 112, s 144

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Nguyen v The Queen (2016) 90 ALJR 595; [2016] HCA 17, cited
R v BCX[2015] QCA 188, cited
R v Challacombe[2009] QCA 314, considered
R v Connolly[2016] QCA 132

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 Clark

Details

AGLC: R v Clark [2016] QCA 173
Case: [2016] QCA 173
Decision Date: 24 June 2016

CaseChat Overview and Summary

The case of R v Clark involves an appellant who pleaded guilty to trafficking in a dangerous drug, and to two summary charges of possessing a dangerous drug and a pipe used in connection with drug use. The sentencing court ordered a three-year imprisonment term for the trafficking charge, with a requirement to serve 80 per cent of the term under section 5(2) of the Drugs Misuse Act 1986 (Qld). The summary charges attracted a sentence of one month imprisonment each, to be served concurrently. The appellant was identified during a covert police operation and had a history of drug-related charges beginning in 2013. She has two children and a previously clean criminal record, with her drug use reportedly stemming from the death of her infant child.

The legal issues in the case centred on whether the sentence was manifestly excessive or inadequate. The appellant argued that the sentencing judge should have imposed a partially suspended sentence, setting the head sentence at three years, suspended after 12 months, with an operational period of three years. She contended that her prospects of rehabilitation were not as low as the sentencing judge had concluded, and that she had not had a fair opportunity to demonstrate rehabilitation due to delays in the legal proceedings.

The court examined the circumstances surrounding the appellant's offending and rehabilitation prospects, considering her personal history, the nature of the offences, and the sentencing principles. The court noted the appellant's failure to attend counselling and continued drug use while on probation as indicators of her unsatisfactory performance in rehabilitation efforts. Despite the appellant's argument that she had not had a fair opportunity to demonstrate rehabilitation, the court found that the sentencing judge had appropriately considered the appellant's history and prospects for rehabilitation. The court held that the sentence was not manifestly excessive, given the seriousness of the offences and the appellant's history.

The final orders of the court were to refuse the application for leave to appeal against the sentence. The reasoning provided by the court underscored the importance of adhering to the sentencing principles and the judge's assessment of the appellant's rehabilitation prospects. The refusal of leave to appeal upheld the original sentence imposed by the lower court.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, if the offender’s legal representatives bring about, participate in, or encourage, such delay, it may be a breach of their duty to the court. Then again, if the court enforced that duty in a way that unfairly deprived an offender of the chance to demonstrate sufficient rehabilitation such as to deny the engagement of s 5(2), there is a risk that the Court will be seen as an arm of the legislature’s policy. Policy matters such as that reflected in s 5(2) are not matters for the court.Conclusion For the reasons expressed above I would refuse leave to appeal. I propose the following order:The application for leave to appeal is refused. NORTH J: I have read the reasons for judgment of Morrison JA. I agree with the order proposed by his Honour for the reasons given by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Clark [2016] QCA 173

Most Recent Citation

R v Thompson [2016] QCA 196

Cases citing this decision · 11 of 11 shown

R v HCK
[2023] QCA 65 Para 11

…R v BCX has been followed in R v Theohares [2016] QCA 51, R v Schenk; Ex parte Attorney-General (Qld) [2016] QCA 131 and R v Clark [2016] QCA 173.…
R v Spark
[2018] QCA 231

…The second case relied upon by the Crown was R v Clark [2016] QCA 173. In that case, the applicant had trafficked over a two and a half month period. She did so for commercial gain and to feed her own methylamphetamine habit. She was 24 and 25 at the time of offending. She too had begun using drugs following emot…
R v Baker
[2018] QCA 209 Para 16

…of Submissions, para 9.19. [3](2005) 228 CLR 357 at 371 [27]. See also Nguyen v The Queen (2016) 256 CLR 656 at 669-670 [37]; R v Clark [2016] QCA 173 at [68]; R v Hood [2005] 2 Qd R 54 at 67 [47].…
R v Raine
[2017] QCA 204 Para 18

…e conduct and no matter how strong the rehabilitation. One would be forgiven for thinking that cannot be in the community’s best interests.” [2][2016] QCA 173. [3]At [69].…
R v Hughes
[2017] QCA 178 Para 13

…two years. [30]See R v Atkins [2007] QCA 309; R v Baradel [2016] QCA 114 ; R v Borowicz [2016] QCA 211; R v Challacombe [2009] QCA 314; R v Clark [2016] QCA 173; R v Reid [2013] QCA 190.…
R v Frith
[2017] QCA 143 Para 34

…entence must be viewed in the context of other sentences being imposed cumulatively for drug related offending in separate and discreet periods. [5][2016] QCA 173. [6][2017] QCA 63.…
R v Brookes
[2017] QCA 63 Para 1

…hat the sentence of five years was manifestly excessive. The applicant cited R v Ungvari ,[3] R v Clark [4] and R v Briggs .[5] [3][2010] QCA 134. [4][2016] QCA 173. [5][2012] QCA 291.…
R v Squires
[2016] QCA 348 Para 10

…opriate sentence”. Where there is such a requirement, it is appropriate to sentence at the lower end of the available range.” [13][2016] QCA 173.…
R v Laidlaw
[2016] QCA 290 Para 2

…compared with the sentence imposed in R v Clark .[13]To the extent that it exceeds the halfway point, it is explained in the sentencing remarks. [13][2016] QCA 173.…
R v Borowicz
[2016] QCA 211 Para 1

…are intended to complement the observations made in R v Clark [45] concerning s 5(2) and parole-based sentences with which I respectfully agree. [45][2016] QCA 173, per McMurdo P at [5] and Morrison JA at [50]-[53], [68].…
R v Thompson
[2016] QCA 196 Para 19

…la [5] as establishing the appropriate sentencing level. Mention was also made of R v McAway .[6] [1]As to which, see the discussion in R v Clark [2016] QCA 173 at [3]-[6] per McMurdo P and [31]-[34] per Morrison JA. [2]At [28]. [3][2005] QCA 379 (“ Taylor ”). [4][2009] QCA 314 (“ Challacombe ”). [5][2015] QCA 10…

View all 11 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Connolly
[2016] QCA 132 Para 3

…ed himself off drugs, returned home and gained work in his family’s business, initially working short hours because of his ill health”.[49] [48][2016] QCA 132. [49] Connolly at [14].…
Nguyen v The Queen
[2016] HCA 17

…s 9(2), s 13, s 112, s 144 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Nguyen v The Queen (2016) 90 ALJR 595; [2016] HCA 17, cited R v BCX [2015] QCA 188, cited R v Challacombe [2009] QCA 314, considered R v Connolly [2016] QCA 132, considered R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, ci…
R v Blumke
[2015] QCA 264 Para 4

…18 occasions of supply, each of which were separately charged as well as the trafficking. [51] Connolly at [16]-[17]. [52]Also R v Blumke [2015] QCA 264, R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8, and R v Engellenner [2012] QCA 6. [53] Connolly at [39]. [54] Connolly at [40].…
R v Mikula
[2015] QCA 102 Para 1

…evel than many cases that I’ve dealt with where I have imposed sentences of three years.” [18]These were: R v Scott [2006] QCA 76, R v Mikula [2015] QCA 102 and R v Challacombe [2009] QCA 314. [19]AB 29 line 36.…
R v BCX
[2015] QCA 188 Para 23

…is a matter of instinctive synthesis,[37] his Honour’s approach was correct. [37] Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; R v BCX [2015] QCA 188, at [35].…
R v Dowel; Ex parte
[2013] QCA 8 Para 4

…ed as well as the trafficking. [51] Connolly at [16]-[17]. [52]Also R v Blumke [2015] QCA 264, R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8, and R v Engellenner [2012] QCA 6. [53] Connolly at [39]. [54] Connolly at [40].…
R v Engellenner
[2012] QCA 6 Para 4

…] Connolly at [16]-[17]. [52]Also R v Blumke [2015] QCA 264, R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8, and R v Engellenner [2012] QCA 6. [53] Connolly at [39]. [54] Connolly at [40].…
R v Challacombe
[2009] QCA 314 Para 1

…t with where I have imposed sentences of three years.” [18]These were: R v Scott [2006] QCA 76, R v Mikula [2015] QCA 102 and R v Challacombe [2009] QCA 314. [19]AB 29 line 36.…
R v McAway
[2008] QCA 401 Para 32

…years was imposed on a 20 year old offender with no criminal history whose offending was at the lower end of a drug trafficking network.” [40][2008] QCA 401. ( McAway ) [41][2005] QCA 379. ( Taylor ) [42] Challacombe at [15], Holmes and Muir JJA concurring. Internal footnotes omitted.…
R v Mullins
[2007] QCA 418 Para 2

…46]Including Taylor , R v Bagnall [2005] QCA 20, R v P [2004] QCA 365, R v Rizk [2004] QCA 382, R v Tytherleigh [2006] QCA 193, and R v Mullins [2007] QCA 418. [47] McAway at [26].…
R v Tytherleigh
[2006] QCA 193 Para 2

…d to be manifestly excessive.” [46]Including Taylor , R v Bagnall [2005] QCA 20, R v P [2004] QCA 365, R v Rizk [2004] QCA 382, R v Tytherleigh [2006] QCA 193, and R v Mullins [2007] QCA 418. [47] McAway at [26].…
R v Taylor
[2005] QCA 379 Para 32

…old offender with no criminal history whose offending was at the lower end of a drug trafficking network.” [40][2008] QCA 401. ( McAway ) [41][2005] QCA 379. ( Taylor ) [42] Challacombe at [15], Holmes and Muir JJA concurring. Internal footnotes omitted.…
Markarian v The Queen
[2005] HCA 25 Para 23

…e process of sentencing is a matter of instinctive synthesis,[37] his Honour’s approach was correct. [37] Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; R v BCX [2015] QCA 188, at [35].…
R v Bagnall
[2005] QCA 20 Para 2

…this case. The sentence imposed, while at the top of that range, cannot be said to be manifestly excessive.” [46]Including Taylor , R v Bagnall [2005] QCA 20, R v P [2004] QCA 365, R v Rizk [2004] QCA 382, R v Tytherleigh [2006] QCA 193, and R v Mullins [2007] QCA 418. [47] McAway at [26].…
R v Rizk
[2004] QCA 382 Para 2

…top of that range, cannot be said to be manifestly excessive.” [46]Including Taylor , R v Bagnall [2005] QCA 20, R v P [2004] QCA 365, R v Rizk [2004] QCA 382, R v Tytherleigh [2006] QCA 193, and R v Mullins [2007] QCA 418. [47] McAway at [26].…
R v P
[2004] QCA 365 Para 2

…ce imposed, while at the top of that range, cannot be said to be manifestly excessive.” [46]Including Taylor , R v Bagnall [2005] QCA 20, R v P [2004] QCA 365, R v Rizk [2004] QCA 382, R v Tytherleigh [2006] QCA 193, and R v Mullins [2007] QCA 418. [47] McAway at [26].…
Including R v Scott
[2006] QCA 76 Para 1

…ertainly is at a greater level than many cases that I’ve dealt with where I have imposed sentences of three years.” [18]These were: R v Scott [2006] QCA 76, R v Mikula [2015] QCA 102 and R v Challacombe [2009] QCA 314. [19]AB 29 line 36.…

Legislation cited in this decision · 3

Drugs Misuse Act 1986 (Qld)
5 2 mentions (from Para 3)
Penalties and Sentences Act 1992 (Qld)
9(2) 2 mentions (from Para 3)
Justice and Other Legislation Amendment Act 2013 (Qld)
68B 1 mention (from Para 3)

CITATION:	R v Clark [2016] QCA 173
PARTIES:	R v CLARK, Aimee Eileen (applicant)
FILE NO/S:	CA No 292 of 2015 SC No 68 of 2015 SC No 74 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Rockhampton – Date of Sentence: 19 November 2015
DELIVERED ON:	24 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	3 June 2016
JUDGES:	Margaret McMurdo P and Morrison JA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
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 one count of trafficking in a dangerous drug, and to two summary charges of possessing a dangerous drug, and possessing a pipe that was used in the connection with the use of a dangerous drug – where the applicant was sentenced to three years imprisonment and, pursuant to s 5(2) of the Drugs Misuse Act 1986 (Qld), was ordered to serve a minimum of 80 per cent of that term – where the summary charges attracted a sentence of one month imprisonment each, to be served concurrently with the trafficking sentence – where the applicant was identified through a covert police operation that brought to light that the applicant was dealing in methylamphetamine at a street level – where the applicant has two children and a good work history – where the applicant had a clean criminal history until 2013 when she was charged with the possession of dangerous drugs and was further charged over the following two years with drug related charges – where the applicant alleges that she started using drugs as a result of the death of her infant child to sudden infant death syndrome – where the applicant had previously performed “unsatisfactorily” as described in a probation report, by failing to attend counselling and using drugs whilst on probation – where the learned sentencing judge concluded that the applicant’s prospects of rehabilitation were low – where the applicant contends that the learned sentencing judge should have ordered a partially suspended sentence – where the applicant contends that the learned sentencing judge should have set the head sentence at three years, suspended after 12 months, with an operational period of three years – whether the sentence was manifestly excessive Drugs Misuse Act 1986 (Qld), s 5, s 5(2), s 5(3)(b) Justice and Other Legislation Amendment Act 2013 (Qld), s 68B Penalties and Sentences Act 1992 (Qld), s 9(2), s 13, s 112, s 144 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited Nguyen v The Queen (2016) 90 ALJR 595; [2016] HCA 17, cited R v BCX[2015] QCA 188, cited R v Challacombe[2009] QCA 314, considered R v Connolly[2016] QCA 132