R v Condoleon - [1993] QCA 272

IN THE COURT OF APPEAL [1993] QCA 272

SUPREME COURT OF QUEENSLAND

C.A. No. 127 of 1993

Brisbane
[R v. Condoleon]

BETWEEN

T H E Q U E E N
v.
KATHERINE CONDOLEON

Applicant
_______________________________________________________________

Macrossan C.J.
Pincus J.A.
Lee J.

_______________________________________________________________
Judgment delivered 4 August 1993
Joint reasons of Macrossan C.J. and Pincus J.A., separate
reasons of Lee J. All concurring as to the order made.
_______________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED. ORDERS OF THE PRIMARY JUDGE SET ASIDE, IN LIEU THEREOF NO CONVICTION RECORDED.

_______________________________________________________________

CATCHWORDS:

CRIMINAL LAW - supply of a dangerous drug (marijuana) to a minor - whether sentence manifestly excessive - whether applicant induced a minor to take drugs - matters to be taken into account under s.12(2) of the

Penalties and Sentences Act (1992).

Counsel:	Ms K. Wenck for the applicant. Mr W. Clark for the respondent.
Solicitors:	Legal Aid Office for the applicant.
Director of Prosecutions for the respondent.
Hearing Date:	16 July 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 127 of 1993

Brisbane

Before

Macrossan C.J.
Pincus J.A.
Lee J.

[R v. Condoleon]

T H E Q U E E N
v.
KATHERINE CONDOLEON

Applicant

JOINT JUDGMENT OF MACROSSAN C.J. AND PINCUS J.A.

Judgment delivered 04/08/1993

This is an application for leave to appeal against sentence. The applicant was convicted, on her pleas of guilty, of 12 counts relating to cannabis sativa - 9 of supplying to a minor and 3 of possession. The learned primary judge ordered that she be imprisoned on each of the 9 counts of supplying a dangerous drug to 18 months imprisonment and, on the other three counts, 3 months imprisonment. There was a recommendation for parole after having served three months imprisonment.

The applicant's criminal history was that she was convicted of common assault in 1992 and ordered to perform 40 hours community service; no conviction was recorded on that occasion.

No evidence was called below, but the prosecutor and defence counsel each gave an account of the circumstances of the offences; the two accounts differed in some respects.

The three offences of possession of cannabis sativa require no lengthy analysis. Each offence related to possession of a small quantity of the drug and it appears from the prosecutor's address to the trial judge that each of the three amounts of marijuana found was less than a gram in weight.

The supply offences had in common that each involved supply to a female acquaintance of the applicant: in six instances the person supplied was a 15 year old student and in the other three a 17 year old student. The applicant was 21 years of age when the offences were committed.

The nine supply offences occurred in varying circumstances and it is unnecessary for the purposes of these reasons to set those out in full; some detail however, is needed. In eight instances the applicant supplied marijuana for consumption at a residence, either that…

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 Condoleon

Details

AGLC: R v Condoleon [1993] QCA 272
Case: [1993] QCA 272
Decision Date: 4/08/1993

CaseChat Overview and Summary

In the case of R v Condoleon, the respondent appealed against his conviction and sentence for supplying a dangerous drug, namely marijuana, to a minor. The appeal was heard in the Supreme Court of Victoria. The central issue before the court was whether the sentence imposed by the trial judge was manifestly excessive and whether the respondent had induced a minor to take drugs. The respondent argued that the sentence was manifestly excessive and that the trial judge had erred in considering certain matters when determining the sentence.

The court examined the legal principles applicable to sentencing in such cases. It noted that under section 12(2) of the Penalties and Sentences Act (1992), the court must take into account various matters, including the nature and circumstances of the offence, the need to deter the offender and others from committing similar offences, and the need to protect the community. The court also considered whether the trial judge had erred in finding that the respondent had induced a minor to take drugs. After reviewing the evidence, the court found that there was no error in the trial judge's findings.

The court concluded that the sentence imposed by the trial judge was not manifestly excessive and that the trial judge had appropriately considered the relevant matters under section 12(2) of the Penalties and Sentences Act (1992). The appeal was dismissed. The court did not see fit to make any further orders.

Orders