R v Hamlet - [2002] QCA 71

[2002] QCA 71

COURT OF APPEAL

DAVIES JA
MUIR J
PHILIPPIDES J

CA No 300 of 2001

THE QUEEN

VIVIENNE MAVIS HAMLET Applicant

BRISBANE

..DATE 13/03/2002

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the Supreme Court on 18 October 2001 to trafficking in heroin between 23 June 1998 and 29 June 2000, receiving property obtained from trafficking on 9 July 1999 and supplying heroin on 12 October 1999. She was sentenced, it appears, to a global sentence of nine years imprisonment for these offences. She seeks leave to appeal against that sentence on the ground that it was manifestly excessive.

The applicant is 37 years of age and until recently was a heroin addict. She commenced heroin use when she was 17 years of age and it appears that, shortly after this, her criminal history commenced. In 1984 she was convicted of possession of property suspected of being stolen. In 1985 she was convicted of stealing and of suffering premises to be used in connection with the smoking of a dangerous drug and of obstructing police. In 1988 she was before the Court on three occasions. On the first she was convicted on two charges of receiving. On the second she was convicted of stealing and assault occasioning bodily harm and on the third she was convicted of possession of a utensil used in connection with the administration of a dangerous drug and attempted possession of a dangerous drug.

There is then no evidence of her having committed any crime between October 1988 and September 1994. It was said on her behalf below that at the beginning of this period she met her current de facto husband and sought admission to a methadone program. The relationship with her de facto was a stable one until he also became addicted to heroin and it appears that in 1995 and 1997 she was convicted of producing a dangerous drug and of supplying dangerous drugs. Then on 24 June 1998 she was found in possession of heroin for which she was convicted and sentenced in the Magistrates Court in September that year. On 12 October 1998 she was again found to be in possession of heroin for which she was sentenced again in the Magistrates Court on 14 December 1998. Heroin was again found in her possession on 17 December 1999 for which she was sentenced to an intensive correction order in the Supreme Court on 30 October 2000. And again on 14 February 2000 she was found to have $3,000 in cash in her possession and a quantity of heroin and she was sentenced for that offence in the Magistrates Court on 20 November 2000.

That comprised the totality of the applicant's previous convictions when she came to be sentenced in respect of the current offences. For those convictions she had only once been sentenced to imprisonment. That was for the offence of possession on 17 December 1999 for which the Supreme Court imposed a sentence of 12 months imprisonment…

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 Hamlet

Details

AGLC: R v Hamlet [2002] QCA 71
Case: [2002] QCA 71
Decision Date: 13/03/2002

CaseChat Overview and Summary

The case of R v Hamlet involved the applicant, Vivienne Mavis Hamlet, who sought leave to appeal against her sentence of nine years imprisonment for trafficking in heroin, receiving property obtained from trafficking, and supplying heroin. The applicant had a history of drug-related offenses, beginning in 1984, and had been a heroin addict for many years. She had been convicted and sentenced for multiple drug-related offenses between 1984 and 2000, including possession, trafficking, and supplying heroin. The applicant pleaded guilty to the current offences in the Supreme Court on 18 October 2001 and was sentenced to a global sentence of nine years imprisonment. The legal issue before the court was whether the sentence imposed was manifestly excessive. The court found that the applicant's previous convictions for possession of heroin could be used as circumstances to prove the offence of trafficking, but that the applicant had also been sentenced for receiving property obtained from trafficking and supplying heroin, which were not merely circumstances but one of the acts that constituted the trafficking. The court held that it was wrong for the sentencing judge to sentence the applicant for these offences, and that the court was in a position to resentence the applicant. The court found that an appropriate sentence for the trafficking offence, taking into account the mitigating factors, should have been a sentence of seven years imprisonment. The court granted the application, allowed the appeal, and sentenced the applicant to seven years imprisonment on the trafficking count, with no sentence imposed on either of the other offences.

Orders