R v Hawke

Case [2021] QCA 179

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hawke [2021] QCA 179

PARTIES:

R
v
HAWKE, Melanie Prudence Jean
(applicant)

FILE NO/S:

CA No 8 of 2021
SC No 1634 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 26 November 2020 (Crow J)

DELIVERED ON:

Date of Orders: 27 July 2021
Date of Publication of Reasons: 27 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2021

JUDGES:

Sofronoff P and McMurdo JA and Applegarth J

ORDERS:

Date of Orders: 27 July 2021

1.   Application to seek leave to appeal granted.

2.   Appeal allowed.

3.   Vary the sentence imposed on count 1 of the indictment by ordering that the date for the applicant’s release on parole be 27 July 2021.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of possession of methylamphetamine in excess of two grams, one count of possession of MDMA, and drug-related summary offences – where the applicant had no recorded criminal convictions – where the applicant had taken very significant steps towards rehabilitation – where the applicant was sentenced to three years imprisonment with parole after serving 12 months – whether requiring the applicant to serve 12 months actual custody before release on parole was manifestly excessive in her circumstances

Penalties and Sentences Act 1992 (Qld), s 9(1)(b), s9(1)(c), s 9(1)(d)

R v Fahey[2019] QCA 142, cited
R v Hesketh; Ex parte Attorney-General (Qld) [2004] QCA 116, cited
R v Nguyen[2015] QCA 205, cited
R v Nicholson[2016] QCA 315, cited
R v Power[2013] QCA 351, cited

COUNSEL:

The applicant appeared on her own behalf
S L Dennis for the respondent

SOLICITORS:

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

  1. SOFRONOFF P:  For the reasons given by Applegarth J, I joined in making the orders on 27 July 2021.

  2. McMURDO JA:  The reasons of Applegarth J explain why I joined in the orders that were made by the Court on 27 July 2021.

  3. APPLEGARTH J:  By her mid-40s, the applicant had achieved much in life.  After leaving school in grade 11 she had a commendable work history, progressing to senior positions as a business manager.  She had two adult children from her first marriage and a 12-year-old boy from her second marriage.

  4. Her life then fell apart.  Her husband was badly injured and had no income protection.  In addition to the stresses of mounting financial pressure, she discovered that her husband had been having an affair.  She was introduced to “ice” by a relative of her husband and used it to self-medicate.

  5. Inevitably, this did her and others great harm.  Her relationship with her husband became even worse.  They separated in 2019 and she left the family home to become a boarder elsewhere.

  6. That residence was searched by police…

Continue reading R v Hawke

Sign in free to access the full text

Details
AGLC
R v Hawke [2021] QCA 179
Case
[2021] QCA 179
Decision Date

CaseChat Overview and Summary

The applicant in the case, Hawke, pleaded guilty to possession of methylamphetamine in excess of two grams, possession of MDMA, and drug-related summary offences. The court sentenced Hawke to three years imprisonment, with parole after serving 12 months. Hawke appealed against the sentence, arguing that it was manifestly excessive, considering her lack of criminal history, and the significant steps she had taken towards rehabilitation. Hawke also submitted that the sentence placed too much weight on her prior drug-related offending, which occurred when she was 17 years old.

The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge failed to give appropriate weight to Hawke's psychological vulnerability in prison and her wife's mental illness. The court found that the sentence was not manifestly excessive and that the sentencing judge had appropriately weighed the mitigating factors. The court also found that the prior drug-related offending was relevant in determining the sentence.

In reaching its decision, the court considered the appropriate use of comparable cases and the need for consistency in sentencing. The court found that the sentence was within the appropriate range for cases with similar circumstances. The court also found that the sentence appropriately balanced the need for punishment and deterrence with the need for rehabilitation.

The final orders of the court were to grant leave to appeal and to allow the appeal. The court varied the sentence imposed on count 1 of the indictment by ordering that Hawke's release on parole be on 27 July 2021.

Orders

Orders of the court

Date of Orders: 27 July 2021

1. Application to seek leave to appeal granted.

2. Appeal allowed.

3. Vary the sentence imposed on count 1 of the indictment by ordering that the date for the applicant’s release on parole be 27 July 2021.

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

He was sentenced to two-and-a-half years imprisonment for his possession of methylamphetamine and a parole release date was fixed after he had served nine months. His application to this court did not contest the head sentence, but argued that the sentence was manifestly excessive in not paying sufficient regard to his psychological vulnerability in prison and the strain placed on him by his wife’s mental illness. It was also said that too much weight was placed on his prior offending. About nine years before the subject offences, Mr Nguyen had been sentenced to five years imprisonment for trafficking. These offences had been committed when he was a 17 year old. Nevertheless, his history of serious drug offending was found to warrant a period of actual custody. This court was unpersuaded that the sentencing judge failed to give appropriate weight to the two personal factors identified. The sentence was not manifestly excessive.What may be drawn from these decisions?The appropriate use of comparable cases Sentences which are found not to be manifestly excessive or manifestly inadequate, or which are re-sentenced on appeal if they are, create a pattern. The pattern provides guidance for comparable cases. The cases assist in ensuring reasonable predictability and, more importantly, equality before the law. Cases that are similar should receive a similar sentence, whereas cases that are different should receive different sentences. The range of sentences disclosed by an analysis of comparable cases is not necessarily the correct range or determinative of the limits of the sentencing discretion.[24] This court has deprecated the course of seeking to “grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence.”[25][24]R v Pham (2015) 256 CLR 550 at [27] per French CJ, Keane and Nettle JJ cited in R v Fahey [2019] QCA 142 at [8].[25]R v Dwyer [2008] QCA 117 at [37]. Still, consistency in sentencing is often assisted by identifying a range within which an appropriate sentence that is open in the case at hand should fall. Reasonable consistency also is achieved by practices, or what some might regard as rules of thumb. For example, an early or timely guilty plea is often reflected in a parole release or eligibility date or a date after which the sentence is suspended. The starting point is a date after one-third of the term to be served. By these means, disparities between near similar cases are reduced.[26][26]The function of guidelines which structure complex judgments and reduce disparities between individual decisions extends beyond sentencing decisions: see Daniel Kahneman, Olivier Sibony and Cass Sunstein, Noise: A Flaw in Human Judgment (Little, Brown Spark, 2021), pp 69-76, 221-223, 273-286. Both the term of imprisonment and the period of actual custody to be served before possible or actual release into the community need to be assessed in determining whether the overall sentence is manifestly excessive.The ‘range’ of head sentences in the comparable cases

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.