R v de Carteret - [2006] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

R v de Carteret [2006] QCA 279

PARTIES:

R
v
DE CARTERET, Ashleigh Vaudin Jay
(applicant/appellant)

FILE NO/S:

CA No 114 of 2006
SC No 87 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2006

JUDGES:

de Jersey CJ, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence allowed
2. Amend the indictment by deleting the word “February” in count 1 and inserting the word “January”
3. The appeal is otherwise 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 – applicant pleaded guilty to unlawful possession of a dangerous drug, possession of $420 reasonably suspected of being proceeds of an offence under Drugs Misuse Act 1986 (Qld) and possession of property reasonably suspected of being used in connection with commission of an offence under the same act – sentenced to two and a half years imprisonment suspended after nine months with an operational period of three years for the possession count and a concurrent term of six months imprisonment for other counts – whether the sentence was manifestly excessive in all the circumstances

Criminal Code 1899 (Qld), s 572(3)
Drugs Misuse Act 1986 (Qld)

R v Bagnall [2005] QCA 20; CA No 10 of 2005, 11 February 2005, considered
R v Fahey, Soloman and AD [2002] 1 Qd R 391; [2001] QCA 82, cited
R v Wynyard [2004] QCA 431; CA No 296 of 2004, 12 November 2004, considered

COUNSEL:

M McMillan (sol) for the applicant
M J Copley for the respondent

SOLICITORS:

McMillan Criminal Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA. I agree with the orders His Honour proposes, and with his reasons.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and there is nothing I wish to add thereto. The orders should be as he proposes.

JERRARD JA: On 10 April 2006 Mr de Carteret pleaded guilty to the offences of having unlawful possession of the dangerous drug 3, 4-methylenedioxymethamphetamine (MDMA, or “ecstasy”) on 21 February 2005 at Fortitude Valley in Brisbane, to possessing on 21 January 2005 $420 reasonably suspected of being the proceeds of an offence against the Drugs Misuse Act 1986 (Qld), and to possessing on that latter date two mobile telephones reasonably suspected of having been used in connection with the commission of an offence against that Act. He was sentenced to imprisonment to two and a half years, suspended after serving nine months, with an operational period of three years.…

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 de Carteret

Details

AGLC: R v de Carteret [2006] QCA 279
Case: [2006] QCA 279
Decision Date: 4 August 2006

CaseChat Overview and Summary

The case before the court involved an appeal by the applicant against their sentence following a guilty plea to various drug-related offences. The applicant had been convicted of unlawful possession of a dangerous drug, possession of $420 reasonably suspected of being proceeds of an offence under the Drugs Misuse Act 1986 (Qld), and possession of property reasonably suspected of being used in connection with the commission of an offence under the same act. The court sentenced the applicant to two and a half years imprisonment, suspended after nine months, with an operational period of three years for the possession count, and a concurrent term of six months imprisonment for the other counts. The applicant sought to appeal against the sentence, arguing it was manifestly excessive in the circumstances.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court needed to consider the severity and appropriateness of the sentence in light of the principles of sentencing, including the need for punishment, deterrence, and rehabilitation. The applicant argued that the sentence was disproportionately harsh, given their personal circumstances and the relatively minor nature of the offence. The prosecution, on the other hand, contended that the sentence was appropriate and reflected the seriousness of the offences.

In determining the appeal, the court considered the nature of the offences, the applicant's criminal history, and the principles of sentencing. The court acknowledged that the applicant had pleaded guilty and shown remorse, but also noted the seriousness of the offences and the need for general deterrence. After careful consideration, the court found that while the sentence was severe, it was not manifestly excessive. The court allowed the application for leave to appeal against the sentence but dismissed the appeal on the merits. Additionally, the court ordered an amendment to the indictment to correct a minor error in the date of the offence.

Orders

Orders of the court

1. Application for leave to appeal against sentence allowed

2. Amend the indictment by deleting the word “February” in count 1 and inserting the word “January”

3. The appeal is otherwise dismissed

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v de Carteret [2006] QCA 279
PARTIES:	R v DE CARTERET, Ashleigh Vaudin Jay (applicant/appellant)
FILE NO/S:	CA No 114 of 2006 SC No 87 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	12 July 2006
JUDGES:	de Jersey CJ, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence allowed 2. Amend the indictment by deleting the word “February” in count 1 and inserting the word “January” 3. The appeal is otherwise 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 – applicant pleaded guilty to unlawful possession of a dangerous drug, possession of $420 reasonably suspected of being proceeds of an offence under Drugs Misuse Act 1986 (Qld) and possession of property reasonably suspected of being used in connection with commission of an offence under the same act – sentenced to two and a half years imprisonment suspended after nine months with an operational period of three years for the possession count and a concurrent term of six months imprisonment for other counts – whether the sentence was manifestly excessive in all the circumstances Criminal Code 1899 (Qld), s 572(3) Drugs Misuse Act 1986 (Qld) R v Bagnall [2005] QCA 20; CA No 10 of 2005, 11 February 2005, considered R v Fahey, Soloman and AD [2002] 1 Qd R 391; [2001] QCA 82, cited R v Wynyard [2004] QCA 431; CA No 296 of 2004, 12 November 2004, considered
COUNSEL:	M McMillan (sol) for the applicant M J Copley for the respondent
SOLICITORS:	McMillan Criminal Law for the applicant Director of Public Prosecutions (Queensland) for the respondent