R v. Gough - [2008] QCA 372

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gough [2008] QCA 372

PARTIES:

R
v
GOUGH, Manuella Sandy
(applicant)

FILE NO/S:

CA No 179 of 2008
SC No 60 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

28 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2008

JUDGES:

de Jersey CJ, Keane JA and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – plea of guilty to trafficking in methylamphetamine – 3 years with parole after 12 months – substantial relevant prior history – whether Judge accorded sufficient weight to drug rehabilitation of applicant and the burden of her incarceration on her daughters

COUNSEL:

The applicant appeared on her own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: The applicant pleaded guilty to carrying on the business of unlawfully trafficking in the schedule 1 drug methylamphetamine over a period of seven and a half weeks in early 2006. She was sentenced to three years imprisonment, with parole fixed at the 12 months point. For a charge of producing methylamphetamine about six weeks later, she was not further penalized. She seeks leave to appeal against sentence. She appeared in person before this court by telephone link. (The video facilities were malfunctioning.)

The applicant was 32 years old when she offended. She sold the methylamphetamine to a covert police officer on seven occasions, in amounts aggregating 2.381 grams of the pure drug, for a total of $8,650. She sold smaller amounts two or three times a day to other customers. She said her motivation was to repay monies owed by a de facto partner who had been incarcerated – drug debts, and the need to feed her own habit. She cooperated with the police when arrested, and entered timely pleas of guilty. She bore the burden of a very substantial and significant criminal history, including many drug offences for which she had been given the benefit of community based orders. She had served terms of imprisonment.

Subsequently to her commission of the instant offences, the applicant was sentenced to a maximum 12 months imprisonment for drug and other offences, suspended pending her completion of an intensive drug rehabilitation course. While subject to that order, she unfortunately committed further offences. The rehabilitation order was vacated, on the basis that she had failed to comply with it, and she was sentenced in consequence for up to two months imprisonment. The learned Judge who imposed the sentences now challenged was aware of a divergence of opinion as to the quality of the applicant’s performance under that rehabilitation order, but was in the end faced with the obvious significance of the court’s having vacated the order.

The applicant now complains that his…

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. Gough

Details

AGLC: R v Gough [2008] QCA 372
Case: [2008] QCA 372
Decision Date: 28 November 2008

CaseChat Overview and Summary

The appeal against sentence heard by the Court of Appeal was brought by an applicant who had pleaded guilty to trafficking in methylamphetamine. The primary judge had imposed a sentence of three years imprisonment with parole eligibility after twelve months. The applicant had a substantial history of criminal conduct, but argued that the judge had not given sufficient weight to her efforts at drug rehabilitation and the potential impact of her incarceration on her daughters. The Court of Appeal was tasked with determining whether the primary judge had erred in the way in which he weighed these factors when determining the appropriate sentence.

The court was required to assess whether the primary judge had correctly exercised his discretion in imposing a sentence and whether he had given appropriate weight to the factors raised by the applicant. The court examined the sentencing principles relevant to drug trafficking offences, the need for general and specific deterrence, and the principles of rehabilitation and reintegration. The court also needed to consider the weight to be given to the applicant's personal circumstances and the impact of her incarceration on her family. The court determined that the primary judge had not erred in the way in which he weighed the factors relevant to the sentencing decision.

The Court of Appeal found that the primary judge had considered the factors put forward by the applicant and had exercised his discretion appropriately in imposing the sentence. The court held that the judge had given sufficient weight to the applicant's efforts at drug rehabilitation and had considered the potential impact of incarceration on her daughters. The court concluded that the sentence was within the range of appropriate penalties for the offence and did not represent a substantial miscarriage of justice. The appeal against sentence was refused, and the original sentence was upheld.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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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 Gough [2008] QCA 372
PARTIES:	R v GOUGH, Manuella Sandy (applicant)
FILE NO/S:	CA No 179 of 2008 SC No 60 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	28 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2008
JUDGES:	de Jersey CJ, Keane JA and White AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – plea of guilty to trafficking in methylamphetamine – 3 years with parole after 12 months – substantial relevant prior history – whether Judge accorded sufficient weight to drug rehabilitation of applicant and the burden of her incarceration on her daughters
COUNSEL:	The applicant appeared on her own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent