R v Cole - [1998] QCA 205

[1998] QCA 205

COURT OF APPEAL

McPHERSON JA
DEMACK J
HELMAN J

CA No 140 of 1998

THE QUEEN

DONNA MAREE COLE (Applicant)

BRISBANE

..DATE 26/06/98

JUDGMENT

DEMACK J: This is an application for leave to appeal against sentences imposed in the Supreme Court on 7 April 1998. On that day the applicant was charged with the supply of cannabis sativa to an inmate in a correctional institution and she pleaded guilty to that offence.

The circumstances that were placed before the Sentencing Judge were that she visited the David Longlands Correctional Centre intending to see her brother, Malcolm Cole. She was searched by two female officers and found to have a small amount of green leaf material wrapped in plastic in the left cup of her bra. This was analysed and shown to be cannabis sativa. It weighed 1.3 grams.

The offence is a significant one because the Courts have an obligation to ensure that drugs are not taken into prison. Here the explanation given was that she was trying to take her brother what was a late Christmas present, the offence having occurred on 2 January 1998.

However, Ms Cole's criminal history has meant that a sentence of imprisonment was imposed in respect of the charge of supply of the cannabis sativa and also consideration was given to activating a suspended sentence that was imposed in the District Court on 3 December 1996.

She was then sentenced to 18 months' imprisonment. That sentence was suspended after serving three months and an operational period of three years was imposed. The sentencing Judge in this Court imposed a sentence of three months' imprisonment for the possession of marijuana and activated the remaining 15 months of the suspended sentence. The applicant has appealed against that sentence on the basis that it was manifestly excessive.

The Court received a written submission signed by Miss Cole on 23 June this year. When she appeared this morning, representing herself, Miss Cole asked to have the matter adjourned because she wished to do some research into comparable sentences to see if her sentence might be reduced.

The situation which makes it difficult for the applicant to argue that the sentences were manifestly excessive arises from her criminal history. On 15 September 1995, she was convicted of 20 charges of false pretences between 16 December 1991 and 11 August 1995, a charge of stealing and also two breaches of the Bail Act. She was placed on probation for 18 months and restitution in the amount of $952 was ordered. She subsequently appeared before the Magistrates Court in Toowoomba on a charge of indecent language and was placed on a recognisance of $100 to be of good behaviour for two months.

On 3 May 1996 in the Toowoomba Magistrates Court she was dealt with for a breach of the probation order imposed in the previous September. It appears that the breach arose because of non-compliance with the orders rather than because of any further offences. The…

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 Cole

Details

AGLC: R v Cole [1998] QCA 205
Case: [1998] QCA 205
Decision Date: 26/06/1998

CaseChat Overview and Summary

In the matter of R v Cole, the applicant, Donna Maree Cole, sought leave to appeal against sentences imposed by the Supreme Court on April 7, 1998. Cole pleaded guilty to the charge of supplying cannabis sativa to an inmate in a correctional institution. The circumstances surrounding the offence revealed that Cole had visited the David Longlands Correctional Centre intending to see her brother, Malcolm Cole. Upon being searched by two female officers, she was found to have a small amount of green leaf material, later identified as cannabis sativa, concealed in her bra. The drug weighed 1.3 grams. Cole's explanation was that she intended the cannabis to be a late Christmas present for her brother, although the offence occurred on January 2, 1998. Given Cole's criminal history, the Sentencing Judge imposed a sentence of imprisonment for the offence and also considered activating a suspended sentence previously imposed in the District Court on December 3, 1996. Cole was sentenced to 18 months' imprisonment, which was suspended after serving three months with an operational period of three years. The sentencing Judge in this Court imposed a sentence of three months' imprisonment for the possession of marijuana and activated the remaining 15 months of the suspended sentence. Cole appealed on the basis that the sentence was manifestly excessive.

The legal issues the Court needed to decide were whether the sentences imposed were manifestly excessive, considering Cole's criminal history and the nature of the offence. Cole's criminal history included convictions for false pretences, theft, breaches of the Bail Act, indecent language, breaking and entering, assault occasioning bodily harm, and stealing. These offences led to various sentences, including fines, restitution, probation, and imprisonment. The Court had to assess whether the sentence for the current offence of supplying cannabis sativa to a prison inmate was appropriate, given Cole's history of criminal activity and her knowledge of the consequences of breaching the law.

The Court found that the sentence imposed was appropriate and not manifestly excessive. The serious nature of the offence, involving the subversion of prison discipline, was considered alongside Cole's extensive criminal history. The Court noted that the initial sentence in the District Court was moderate given the seriousness of the previous offences. Cole had served three months of an 18-month sentence and was aware of the consequences of further breaches of the law. The sentence of three months' imprisonment for the current offence, coupled with the reactivation of the remaining 15 months of the suspended sentence, was deemed proper. The Court concluded that there was no basis for granting an adjournment to search for comparable sentences, as the sentences imposed were justified. Therefore, the application for leave to appeal was dismissed, and the original sentences were upheld.

Orders