R v Cottle-Pilides - [2006] QCA 72

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cottle-Pilides [2006] QCA 72

PARTIES:

R
v
COTTLE-PILIDES, Tovah Ismini

(applicant/appellant)

FILE NO/S:

CA No 305 of 2005

SC No 187 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

16 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2006

JUDGES:

McMurdo P, Williams JA and Fryberg J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY - where applicant pleaded guilty to trafficking in, possessing and supplying heroin and possessing items used in connection with trafficking – where applicant was convicted and sentenced to six years' imprisonment with a recommendation for post-prison community based release after two years – where applicant has an extensive and relevant criminal history and a history of drug addiction – where courts have previously given applicant lenient sentences and numerous opportunities to rehabilitate herself - where applicant claims that sentence was manifestly excessive in all the circumstances - whether sentence reflects applicant's mitigating circumstances – whether sentence was manifestly excessive

R v Clarke [1996] QCA 474, applied
R v Hammond (1996) 92 A Crim R 450, followed
R v Vidler [1997] QCA 393, applied
R v Watt [1997] QCA 430, applied

R v Woods [1994] QCA 526, distinguished

COUNSEL:

C Callaghan for the applicant/appellant

C W Heaton for the respondent

SOLICITORS:

Callaghan Lawyers for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant pleaded guilty on 15 July 2005 to one count of trafficking in heroin between 1 November 2003 and 24 March 2004 (count 1), two counts of possessing heroin (counts 2 and 4), one count of supplying heroin (count 3), one count of possessing a mobile phone and scales used in connection with trafficking (count 5) and one count of possessing mobile phones, scales and freezer bags for use in connection with trafficking (count 6). She was sentenced on 21 October 2005 on count 1 to six years' imprisonment with a recommendation for eligibility for post-prison community-based release after two years and convicted but not further punished in respect of counts 2 to 5 which were committed within the time period encompassed in count 1. She contends the sentence was manifestly excessive and that a sentence of no more than five years' imprisonment suspended after 15 months with an operational period of five years should be substituted.

The applicant was between 25 and 26 at the time of the commission of the offences which occurred between 1 November 2003 and 24 March 2004. She was 27 at sentence. She had a significant and relevant criminal history. In 1999 she was placed on two years' probation in 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 Cottle-Pilides

Details

AGLC: R v Cottle-Pilides [2006] QCA 72
Case: [2006] QCA 72
Decision Date: 16 March 2006

CaseChat Overview and Summary

In the case of R v Cottle-Pilides, the applicant, previously convicted of trafficking in, possessing, and supplying heroin and possessing items used in connection with trafficking, appealed against the sentence imposed. The sentence was six years' imprisonment with a recommendation for post-prison community-based release after two years. The applicant had an extensive criminal history and a history of drug addiction, having previously received lenient sentences and numerous opportunities to rehabilitate. The appeal centred on the contention that the sentence was manifestly excessive in all the circumstances.

The legal issues before the court were whether the sentence adequately reflected the applicant's mitigating circumstances, and whether the sentence was manifestly excessive. The court considered the nature and circumstances of the offence, the applicant's criminal history, and the principle of proportionality in sentencing. It was noted that the applicant had a long history of drug addiction and criminal behaviour, and had been given numerous opportunities to reform. However, the court found that the sentence was not manifestly excessive and did reflect the seriousness of the offence and the need for general deterrence.

The court dismissed the application for leave to appeal against sentence. It held that the sentence was proportionate and reflected the circumstances of the case, taking into account the applicant's criminal history and history of drug addiction. The court found that the sentence was not manifestly excessive and did not fail to achieve the fundamental purposes of sentencing. The appeal was therefore dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cottle-Pilides [2006] QCA 72
PARTIES:	R v COTTLE-PILIDES, Tovah Ismini (applicant/appellant)
FILE NO/S:	CA No 305 of 2005 SC No 187 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	16 March 2006
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2006
JUDGES:	McMurdo P, Williams JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY - where applicant pleaded guilty to trafficking in, possessing and supplying heroin and possessing items used in connection with trafficking – where applicant was convicted and sentenced to six years' imprisonment with a recommendation for post-prison community based release after two years – where applicant has an extensive and relevant criminal history and a history of drug addiction – where courts have previously given applicant lenient sentences and numerous opportunities to rehabilitate herself - where applicant claims that sentence was manifestly excessive in all the circumstances - whether sentence reflects applicant's mitigating circumstances – whether sentence was manifestly excessive R v Clarke [1996] QCA 474, applied R v Hammond (1996) 92 A Crim R 450, followed R v Vidler [1997] QCA 393, applied R v Watt [1997] QCA 430, applied R v Woods [1994] QCA 526, distinguished
COUNSEL:	C Callaghan for the applicant/appellant C W Heaton for the respondent
SOLICITORS:	Callaghan Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent