R v Clarke - [1996] QCA 474

IN THE COURT OF APPEAL	[1996] QCA 474
SUPREME COURT OF QUEENSLAND

C.A. No 393 of 1996

Brisbane

Before	McPherson J.A. Dowsett J. White J.
[R. v. Clarke]

T H E Q U E E N

SANDRA ANN CLARKE Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant
McPherson J.A.
Dowsett J.
White J.

Judgment delivered 29 November 1996

Judgment of the Court

APPEAL AGAINST SENTENCE ALLOWED.

1.           THE SUSPENSION OF THE SENTENCE ON COUNT 1 IS SET ASIDE AND IN LIEU IT IS ORDERED THAT THE RESPONDENT BE CONSIDERED FOR PAROLE AFTER SERVING 18 MONTHS OF THE 5 YEAR SENTENCE.
2.           THE ORDER IN RESPECT OF COUNTS 3-9 AND 11-12 THAT THE RESPONDENT PERFORM 240 HOURS OF COMMUNITY SERVICE IS SET ASIDE AND IN LIEU IT IS ORDERED THAT SHE PERFORM 37 HOURS COMMUNITY SERVICE.
3.           WITH RESPECT TO COUNTS 2 AND 10 THE ORDER FOR PROBATION IS SET ASIDE AND IN LIEU IT IS ORDERED THAT THE RESPONDENT BE SENTENCED TO A TERM OF IMPRISONMENT FOR 12 MONTHS, TO BE SERVED CONCURRENTLY WITH THE SENTENCE ON COUNT 1.
4.           IT IS ORDERED THAT A WARRANT ISSUE FOR THE ARREST OF THE RESPONDENT, BUT IT IS TO LIE IN THE REGISTRY FOR 7 DAYS OR UNTIL FURTHER ORDER.

CATCHWORDS:	CRIMINAL LAW - SENTENCE - Trafficking in heroin and cannabis - Whether sentencing Judge acted on insufficient evidence in extending leniency - Sentence increased on appeal.
Counsel:	Mrs L. Clare for the appellant Mrs. K. McGinness for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant Legal Aid Office for the respondent
Hearing Date:	12 November 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 29th day of November 1996

The respondent to this appeal by the Attorney-General was presented in the Supreme Court at Rockhampton on an indictment charging her with carrying on the business of trafficking in heroin and cannabis between 1 January and 8 August (count 1); a count of supplying heroin in June 1995 (count 2), and another in July 1995 (count 10), and seven counts of possessing or supplying cannabis on specified dates in June, July, August and October 1995. On being re- arraigned when the charges came to trial on 1 August 1996, she pleaded guilty to all counts except the first two. The trial then proceeded on these two counts, on each of which the jury, after retiring for less than an hour, returned verdicts of guilty.

In respect of count 1 (trafficking in heroin and cannabis), the respondent was sentenced to imprisonment for 5 years wholly suspended for five years. As regards the offences involving cannabis (counts 3 to 9, and counts 11 and 12), she was ordered to perform 240 hours of community service. On the two charges (counts 1 and 10) of supplying heroin she was placed on probation for three years. As to count 2, the amount of heroin supplied was .174 of a gram in a quantity of powder weighing .81 of a gram (21.6%); in the case…

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 Clarke

Details

AGLC: R v Clarke [1996] QCA 474
Case: [1996] QCA 474
Decision Date: 29/11/1996

CaseChat Overview and Summary

The case of R v Clarke involved the defendant, Clarke, who was convicted for trafficking in heroin and cannabis. The matter was brought before the court on appeal by the prosecution, seeking an increase in Clarke's sentence. The original sentencing judge had imposed a sentence that the prosecution deemed too lenient, given the nature and quantity of the drugs involved. The court was required to determine whether the sentencing judge had erred in applying the principles of sentencing, particularly in relation to the level of leniency afforded to Clarke.

The primary legal issue before the court was whether the sentencing judge had acted on insufficient evidence when extending leniency to Clarke. The prosecution argued that the judge had not adequately considered the gravity of the offence and the quantity of drugs involved. They contended that the sentence imposed was disproportionately lenient and failed to reflect the seriousness of Clarke's criminal conduct. The defence, on the other hand, argued that the sentencing judge had appropriately exercised their discretion, taking into account various mitigating factors presented during the sentencing hearing.

The court found that the sentencing judge had indeed acted on insufficient evidence in extending leniency to Clarke. In reviewing the evidence and the sentencing principles applied, the court determined that the original sentence did not adequately reflect the seriousness of the offence. The court emphasised the need for sentences to be proportionate to the gravity of the crime and the quantity of drugs involved. Consequently, the appeal was allowed, and the sentence was increased. The court imposed a harsher sentence, considering the evidence and the need for appropriate deterrence and denunciation.

The final orders of the court included the increase of Clarke's sentence to a term that more accurately reflected the seriousness of the trafficking offences. The court's decision underscored the importance of ensuring that sentences are proportionate to the nature and extent of the criminal conduct, and that they adequately serve the purposes of punishment, deterrence, and rehabilitation.

Orders