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R v Hughes

R v Hughes

Case [2017] QCA 178 22 August 2017

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Hughes [2017] QCA 178

PARTIES:

R
v
HUGHES, Kelly Anne
(applicant)

FILE NO/S:

CA No 345 of 2016
SC No 74 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 November 2016 (Boddice J)

DELIVERED ON:

22 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2017

JUDGES:

Morrison and Philippides JJA and Brown J

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a 25 count indictment where the most serious charge was trafficking in a dangerous drug – where the applicant was sentenced to imprisonment for four years on the trafficking count and other concurrent sentences – where pursuant to the Drugs Misuse Act s 5(2), the applicant was ordered to serve 80 per cent of that sentence before being released on parole – where s 5(2) of the Drugs Misuse Act was repealed after the applicant was sentenced – where the applicant appeals on the ground that the sentence is manifestly excessive – where the applicant refers to the sentences of similar offenders who were involved in the same drug trafficking scheme but were sentenced after s 5(2) of the Drugs Misuse Act was repealed – where the respondent submitted that issues of parity are not relevant – where the applicant claims to have made substantial efforts and successful attempts to rehabilitate – whether the sentence was manifestly excessive – whether, if the application were allowed, the applicant would be subject to s 5(2) of the Drugs Misuse Act as it stood at the time of the original sentence

Criminal Code (Qld), s 668E
Drugs Misuse Act 1986 (Qld), s 5(2)
Serious and Organised Crime Legislation Amendment Act 2016

R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321, followed
R v Borowicz[2016] QCA 211, considered
R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, followed
R v Farrugia (2011) 32 VR 140; [2011] VSCA 24, distinguished
R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, cited
R v Leathers (2014) 147 A Crim R 137; [2014] QCA 327, followed
R v Meerdink[2010] QCA 273, followed
R v Mikaele[2008] QCA 261, cited
R v Wruck (2014) 239 A Crim R 111; [2014] QCA 39, followed
Radenkovic v The Queen (1990) 170 CLR 623; [1990] HCA 54, followed

COUNSEL:

The applicant appeared on her own behalf
J A Wooldridge for the respondent

SOLICITORS:

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

MORRISON JA: On 18 May 2016, Ms Hughes pleaded guilty to a 25 count indictment:
(a)count 1: trafficking in a dangerous drug (methylamphetamine);
(b)count 2: producing a dangerous…

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 Hughes

Details

AGLC: R v Hughes [2017] QCA 178
Case: [2017] QCA 178
Decision Date: 22 August 2017

CaseChat Overview and Summary

The case of R v Hughes involved the applicant who had pleaded guilty to a 25 count indictment, with the most severe charge being trafficking in a dangerous drug. The applicant was sentenced to a four-year imprisonment term for the trafficking charge and received other concurrent sentences. Pursuant to section 5(2) of the Drugs Misuse Act, the applicant was mandated to serve 80 per cent of the four-year sentence before being eligible for parole. Following the applicant's sentencing, section 5(2) of the Drugs Misuse Act was repealed. The applicant subsequently appealed, contending that the sentence was manifestly excessive, citing the sentences of other offenders involved in the same drug trafficking scheme who were sentenced after the repeal of section 5(2). The respondent argued that considerations of parity were irrelevant, while the applicant claimed to have made substantial rehabilitation efforts. The court had to determine whether the sentence was manifestly excessive and, if the appeal were allowed, whether the applicant would be subject to section 5(2) of the Drugs Misuse Act as it stood at the time of the original sentence.

The court examined whether the sentence imposed was manifestly excessive and considered the applicant's claims of rehabilitation efforts. The court also deliberated on the relevance of the sentences imposed on co-offenders post-repeal of section 5(2) of the Drugs Misuse Act. The respondent's argument that issues of parity were not pertinent was weighed against the applicant's assertion that the sentence was disproportionately harsh. The court assessed the proportionality of the sentence and the relevance of the applicant's rehabilitation efforts in the context of the original sentencing provisions. Ultimately, the court concluded that the sentence was not manifestly excessive and that the applicant's rehabilitation efforts did not warrant a reduction in sentence. The court also determined that if the appeal were allowed, the applicant would not be subject to the repealed section 5(2) of the Drugs Misuse Act.

The court's decision was that the application for leave to appeal was refused. The court found that the sentence was not manifestly excessive and that the applicant's claims of rehabilitation efforts did not justify a reduction in the imposed sentence. Additionally, the court ruled that if the appeal were to be allowed, the applicant would not be subject to section 5(2) of the Drugs Misuse Act as it stood at the time of the original sentence. Consequently, the appeal was dismissed, and the original sentence remained in effect. The court's ruling affirmed the trial court's sentencing decision, upholding the four-year imprisonment term for the trafficking charge and other concurrent sentences.

Orders

Orders of the court

The application for leave to appeal is refused.

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.

Citations

AGLC Citation

R v Hughes [2017] QCA 178

Most Recent Citation

R v Raine [2017] QCA 204

Cases citing this decision · 4 of 4 shown

DL v R
[2018] NSWCCA 302 Para 41

…rdingly this Court would be bound to apply the same sentencing regime which bound the learned sentencing judge.”[32] 30. [2018] 2 Qd R 134; [2017] QCA 178 (Morrison JA, Philippides JA and Brown J agreeing) at [48]-[53], referring to R v Wruck [2014] QCA 39; 239 A Crim R 111 at [25]-[31]. See also The Queen v Corn…
R v Dang
[2018] QCA 331 Para 14

…reason only of the statutory rule setting the minimum time to serve, relevant as between [those two offenders]”. [41][2018] 2 Qd R 134 at [31]; [2017] QCA 178.…
R v Baker
[2018] QCA 209 Para 10

…ument that the sentencing judge committed an error in the exercise of the sentencing discretion which is susceptible of appellate correction. [13][2017] QCA 178 at [38]-[39].…
R v Raine
[2017] QCA 204 Para 9

…mposed before the commencement. [6]See R v Cornale [1993] 2 Qd R 294 at 297; [1993] QCA 145; R v Maniadis [1997] 1 Qd R 593 at 597; [1996 QCA 242. [7][2017] QCA 178.…

View all 4 citing cases →

Cases cited in this decision · 16 of 16 shown

R v Borowicz
[2016] QCA 211 Para 13

…five years, albeit suspended after Ms Hughes served just two years. [30]See R v Atkins [2007] QCA 309; R v Baradel [2016] QCA 114 ; R v Borowicz [2016] QCA 211; R v Challacombe [2009] QCA 314; R v Clark [2016] QCA 173; R v Reid [2013] QCA 190.…
R v Clark
[2016] QCA 173 Para 13

…two years. [30]See R v Atkins [2007] QCA 309; R v Baradel [2016] QCA 114 ; R v Borowicz [2016] QCA 211; R v Challacombe [2009] QCA 314; R v Clark [2016] QCA 173; R v Reid [2013] QCA 190.…
R v Baradel
[2016] QCA 114 Para 13

…e suggested a head sentence of five years, albeit suspended after Ms Hughes served just two years. [30]See R v Atkins [2007] QCA 309; R v Baradel [2016] QCA 114 ; R v Borowicz [2016] QCA 211; R v Challacombe [2009] QCA 314; R v Clark [2016] QCA 173; R v Reid [2013] QCA 190.…
R v Leathers
[2014] QCA 327 Para 25

…ers engage in drug trafficking as part of a broader scheme, particularly between offenders who bought and sold drugs from a wholesale supplier. [12][2014] QCA 327. [13](2011) 32 VR 140; [2011] VSCA 24.…
R v Wruck
[2014] QCA 39 Para 20

…d before the rule existed. Like this case, the offender would have had no benefit of such a rule (if special circumstances were indeed made out). [34][2014] QCA 39, at [25]-[31].…
R v Reid
[2013] QCA 190 Para 13

…kins [2007] QCA 309; R v Baradel [2016] QCA 114 ; R v Borowicz [2016] QCA 211; R v Challacombe [2009] QCA 314; R v Clark [2016] QCA 173; R v Reid [2013] QCA 190.…
R v Floyd
[2013] QCA 74 Para 22

…een the two sentences did not reveal any basis for a justifiable sense of grievance, or other unfairness that would lead this Court to intervene. [10][2013] QCA 74.…
Farrugia v The Queen
[2011] VSCA 24 Para 25

…of a broader scheme, particularly between offenders who bought and sold drugs from a wholesale supplier. [12][2014] QCA 327. [13](2011) 32 VR 140; [2011] VSCA 24.…
R v Meerdink
[2010] QCA 273 Para 27

…co-accused was eligible to apply for parole after serving four years in prison, effectively half of what Meerdink was to serve before parole. [17][2010] QCA 273.…
R v AAH and AAG
[2009] QCA 321 Para 26

…remarkable coincidences”[15] and the sentencing judge’s analysis of like cases as “a conventional [review]”.[16] [14](2009) 198 A Crim R 1; [2009] QCA 321. [15] Farrugia at [25]. [16] Farrugia at [36].…
R v Challacombe
[2009] QCA 314 Para 13

…ter Ms Hughes served just two years. [30]See R v Atkins [2007] QCA 309; R v Baradel [2016] QCA 114 ; R v Borowicz [2016] QCA 211; R v Challacombe [2009] QCA 314; R v Clark [2016] QCA 173; R v Reid [2013] QCA 190.…
R v Mikaele
[2008] QCA 261 Para 29

…ropriately made in one case but not made in the other, the principle of parity that would ordinarily apply has little scope for operation.” [20][2008] QCA 261 at [36]. [21]Mackenzie JA, with whom Keane JA and Douglas J concurred.…
R v Atkins
[2007] QCA 309 Para 13

…sel at the sentence, where he suggested a head sentence of five years, albeit suspended after Ms Hughes served just two years. [30]See R v Atkins [2007] QCA 309; R v Baradel [2016] QCA 114 ; R v Borowicz [2016] QCA 211; R v Challacombe [2009] QCA 314; R v Clark [2016] QCA 173; R v Reid [2013] QCA 190.…
R v MJR
[2002] NSWCCA 129 Para 19

…victed person be re-sentenced according to the law as it stood at the time when he was initially sentenced.” [32](1990) 170 CLR 623. [33] R v MJR [2002] NSWCCA 129 at [31].…
R v Crossley
[1999] QCA 223 Para 28

…nce is to be ignored in considering parity between the two.” [18] Meerdink at [31], McMurdo P and Jones J concurring. [19](1999) 106 A Crim R 80; [1999] QCA 223, at [87].…
Radenkovic v The Queen
[1990] HCA 54

…8] QCA 261, cited R v Wruck (2014) 239 A Crim R 111; [2014] QCA 39, followed Radenkovic v The Queen (1990) 170 CLR 623; [1990] HCA 54, followed COUNSEL: The applicant appeared on her own behalf J A Wooldridge for the respondent SOLICITORS: The applicant appeared on her own behalf Director of Public Prosecutions…

Legislation cited in this decision · 3

Drugs Misuse Act 1986 (Qld)
5(2) 2 mentions (from Para 3)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 27)
Serious and Organised Crime Legislation Amendment Act 2016 (Qld)
1 mention

CITATION:	R v Hughes [2017] QCA 178
PARTIES:	R v HUGHES, Kelly Anne (applicant)
FILE NO/S:	CA No 345 of 2016 SC No 74 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 14 November 2016 (Boddice J)
DELIVERED ON:	22 August 2017
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2017
JUDGES:	Morrison and Philippides JJA and Brown J
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a 25 count indictment where the most serious charge was trafficking in a dangerous drug – where the applicant was sentenced to imprisonment for four years on the trafficking count and other concurrent sentences – where pursuant to the Drugs Misuse Act s 5(2), the applicant was ordered to serve 80 per cent of that sentence before being released on parole – where s 5(2) of the Drugs Misuse Act was repealed after the applicant was sentenced – where the applicant appeals on the ground that the sentence is manifestly excessive – where the applicant refers to the sentences of similar offenders who were involved in the same drug trafficking scheme but were sentenced after s 5(2) of the Drugs Misuse Act was repealed – where the respondent submitted that issues of parity are not relevant – where the applicant claims to have made substantial efforts and successful attempts to rehabilitate – whether the sentence was manifestly excessive – whether, if the application were allowed, the applicant would be subject to s 5(2) of the Drugs Misuse Act as it stood at the time of the original sentence Criminal Code (Qld), s 668E Drugs Misuse Act 1986 (Qld), s 5(2) Serious and Organised Crime Legislation Amendment Act 2016 R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321, followed R v Borowicz[2016] QCA 211, considered R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, followed R v Farrugia (2011) 32 VR 140; [2011] VSCA 24, distinguished R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, cited R v Leathers (2014) 147 A Crim R 137; [2014] QCA 327, followed R v Meerdink[2010] QCA 273, followed R v Mikaele[2008] QCA 261, cited R v Wruck (2014) 239 A Crim R 111; [2014] QCA 39, followed Radenkovic v The Queen (1990) 170 CLR 623; [1990] HCA 54, followed
COUNSEL:	The applicant appeared on her own behalf J A Wooldridge for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent