R v Hesketh; Ex parte Attorney-General - [2004] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hesketh; ex parte A-G (Qld) [2004] QCA 116

PARTIES:

R
v
HESKETH, Louise Jane
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 411 of 2003
SC No 89 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

23 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2004

JUDGES:

McPherson and Williams JJA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal allowed

2.    The indictment is to be amended by deleting the word “amphetamine” and inserting in lieu thereof “methylamphetamine”

3.    Set aside the sentence below and in lieu thereof order that the respondent be imprisoned for two and a half years to be suspended as from 27 August 2004 with an operational period of five years to run from 27 November 2003

4.   Order that a warrant issue for the arrest of the respondent but order that it lie in the Registry for a period of 72 hours

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where respondent convicted of possessing more than two grams of methylamphetamine – where sentenced to 12 months imprisonment to be served by way of intensive correction order – where extensive drug-related criminal history – whether sentence imposed manifestly inadequate

Penalties and Sentences Act 1992 (Qld), s 113

R v Campbell [2002] QCA 109; CA No 315 of 2001, 21 March 2002, considered
R v Christie [2000] QCA 165; CA No 430 of 1999, 8 May 2000, cited
R v Kennedy [2000] QCA 140; CA No 23 of 2000, 14 April 2000, cited
R v Skinner; ex parte A-G (Qld) [2001] 1 Qd R 322; [1999] QCA 521; CA No 307 of 1999, 17 December 1999, considered

COUNSEL:

M J Copley for the appellant
A W Moynihan for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid Queensland for the respondent

McPHERSON JA: I agree with the reasons of Williams JA and the orders he proposes for disposing of this appeal.

WILLIAMS JA: The respondent pleaded guilty in the Supreme Court at Cairns on 27 November 2003 to a charge of possessing methylamphetamine with a circumstance of aggravation, namely that the quantity of methylamphetamine exceeded two grams. The prosecution did not proceed on the additional charge on the indictment, namely that the respondent had in her possession scales, clip seal bags and a sum of money used in connection with the commission of the crime of possession of a dangerous drug, but there was no challenge before the sentencing judge to the fact that such items were found in the respondent's possession at the material time. Though the prosecution…

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.

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Details

Case: [2004] QCA 116
Decision Date: 23 April 2004

CaseChat Overview and Summary

In the matter of R v Hesketh, the Attorney-General sought to appeal the sentence imposed on the respondent, who had been convicted of possessing more than two grams of methylamphetamine. The conviction and sentencing occurred in the Supreme Court of Queensland. The Attorney-General argued that the sentence of 12 months imprisonment, to be served by way of an intensive correction order, was manifestly inadequate given the respondent's extensive drug-related criminal history.

The primary legal issue for the Court was whether the sentence imposed was manifestly inadequate. The Court considered the statutory framework under which the sentence was imposed, as well as the principles of sentencing for drug offences. It was necessary to determine whether the sentence reflected the gravity of the offence and the respondent's criminal history.

The Court concluded that the sentence was indeed manifestly inadequate. It took into account the respondent's extensive history of drug-related offences and the significant quantity of the drug involved. The Court noted that the sentence did not adequately reflect the seriousness of the crime or the need to deter future offending. As a result, the appeal was allowed, and the original sentence was set aside. Instead, the respondent was to be imprisoned for two and a half years, suspended from 27 August 2004, with an operational period of five years starting from 27 November 2003. The Court also ordered a warrant for the respondent's arrest, though it was to remain in the registry for 72 hours.

Orders

Orders of the court

1. Appeal allowed

2. The indictment is to be amended by deleting the word “amphetamine” and inserting in lieu thereof “methylamphetamine”

3. Set aside the sentence below and in lieu thereof order that the respondent be imprisoned for two and a half years to be suspended as from 27 August 2004 with an operational period of five years to run from 27 November 2003

4. Order that a warrant issue for the arrest of the respondent but order that it lie in the Registry for a period of 72 hours

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Hesketh; ex parte A-G (Qld) [2004] QCA 116
PARTIES:	R v HESKETH, Louise Jane (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 411 of 2003 SC No 89 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	23 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2004
JUDGES:	McPherson and Williams JJA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed 2. The indictment is to be amended by deleting the word “amphetamine” and inserting in lieu thereof “methylamphetamine” 3. Set aside the sentence below and in lieu thereof order that the respondent be imprisoned for two and a half years to be suspended as from 27 August 2004 with an operational period of five years to run from 27 November 2003 4. Order that a warrant issue for the arrest of the respondent but order that it lie in the Registry for a period of 72 hours
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where respondent convicted of possessing more than two grams of methylamphetamine – where sentenced to 12 months imprisonment to be served by way of intensive correction order – where extensive drug-related criminal history – whether sentence imposed manifestly inadequate Penalties and Sentences Act 1992 (Qld), s 113 R v Campbell [2002] QCA 109; CA No 315 of 2001, 21 March 2002, considered R v Christie [2000] QCA 165; CA No 430 of 1999, 8 May 2000, cited R v Kennedy [2000] QCA 140; CA No 23 of 2000, 14 April 2000, cited R v Skinner; ex parte A-G (Qld) [2001] 1 Qd R 322; [1999] QCA 521; CA No 307 of 1999, 17 December 1999, considered
COUNSEL:	M J Copley for the appellant A W Moynihan for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent