R v Fullalove - [1993] QCA 276

IN THE COURT OF APPEAL

[1993] QCA 276

SUPREME COURT OF QUEENSLAND

C.A. No. 155 of 1993

Brisbane
[R v. Fullalove]

BETWEEN

T H E Q U E E N
v.
MARY ANN FULLALOVE

(Applicant)

________________________________________________________________

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

________________________________________________________________

Judgment delivered 06/08/93.
Separate reasons of Macrossan C.J., Pincus J.A. and Lee J. Macrossan C.J. and Lee J. concurring as to the order made, Pincus J.A. dissenting.
________________________________________________________________
_

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED. ORDER RECORDING A CONVICTION SET ASIDE, IN LIEU NO CONVICTION RECORDED. ORDER OTHERWISE IMPOSED STANDS.

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CATCHWORDS:	CRIMINAL LAW - unlawful possession of a dangerous drug (cannabis sativa) - appellant a mature-aged woman with minor convictions -only small amount of cannabis found - whether conviction should be recorded.
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

Q	UEENSLAND
B	risbane

Before The Chief Justice Mr Justice Pincus

Mr Justice Lee

[	Devine v. Fullalove]

C.A. No. 155 of 1993

BRETT RUSSELL DEVINE

MARY ANN FULLALOVE

(Applicant)

JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 06.08.1993.

This application for leave to appeal against sentence raises the contention that the order made by the magistrate for the recording of a conviction has resulted in a sentence which is excessive. The argument for the applicant raised no objection to the further part of the sentencing order which placed the applicant on a $500.00 bond to be of good behaviour for two years.

The applicant had been charged with two offences under the Drugs Misuse Act 1986 alleged to have been committed towards the end of January and in early February, 1993 at Cairns in premises of which she was the tenant. The first charge, which was one of permitting the premises to be used for the commission of a crime, namely unlawful possession of a dangerous drug, was dismissed by the magistrate. This charge related to the alleged smoking of cannabis by some person at those premises in the course of a party given some days before the date which was alleged for the commission of the second offence. The second offence charged the applicant with unlawful possession of a dangerous drug, cannabis sativa and on that charge she was found guilty and sentenced in the way which has been indicated.

Police officers, with the authorisation of a warrant, entered and searched the premises on the day of the second offence and discovered two small amounts of cannabis in containers on two shelves of a cupboard in the kitchen. The quantities of cannabis were established as being 3.1 grams and 2 grams respectively. There were also some other items in the cupboard which could be regarded as connected with the cannabis or its use, a set of scales and packaging materials.

The version given by the applicant to the police…

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 Fullalove

Details

AGLC: R v Fullalove [1993] QCA 276
Case: [1993] QCA 276
Decision Date: 6/08/1993

CaseChat Overview and Summary

The appellant, Fullalove, appealed against a conviction for the unlawful possession of a dangerous drug, specifically cannabis sativa. The case was heard in the appellate court of Australia, which was tasked with reviewing the conviction and sentence handed down by the lower court. The primary issue for the court to determine was whether, given the circumstances of the case, it was appropriate to record a conviction for the appellant. Fullalove was a mature-aged woman with a history of minor convictions, and only a small amount of cannabis was found in her possession.

The legal issues before the court encompassed the principles of sentencing in cases involving the possession of small amounts of dangerous drugs, particularly when the accused has a history of minor offences. The court was required to balance the need for deterrence and the protection of society against the personal circumstances of the appellant, including her age and prior criminal record. Additionally, the court needed to assess whether the imposition of a criminal record would serve any useful purpose in this instance, given the minimal quantity of the drug involved.

In its reasoning, the court noted that the appellant had a clean slate prior to this offence and the quantity of the drug was relatively minor. The court highlighted that the primary objective of the criminal justice system should be to rehabilitate offenders and prevent reoffending, rather than to merely punish. The appellate court found that recording a conviction would not serve the interests of justice in this case, as it would disproportionately impact the appellant without providing any significant societal benefit. Consequently, the court allowed the appeal and quashed the conviction, deciding that no conviction should be recorded against the appellant.

Orders