R v Illin

Case [2014] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

R v Illin [2014] QCA 285

PARTIES:

R
v
ILLIN, Elvina Fay
(applicant)

FILE NO/S:

CA No 244 of 2014
SC No 45 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

Orders delivered ex tempore 24 October 2014
Reasons delivered 18 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2014

JUDGES:

Fraser and Morrison JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 24 October 2014:

1.    The application be granted.

2.    The appeal be allowed.

3.    The sentence imposed in the trial division be varied by varying the period after which the sentence of imprisonment is suspended from two months to a period of 40 days.

4.    The sentence imposed in the trial division otherwise be confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to trafficking in the dangerous drug cannabis and was sentenced to two years imprisonment, suspended after two months for an operational period of two years – where there was a three year delay between arrest and sentence, and at sentence the applicant submitted she had not used cannabis since arrest and no indication was given by the prosecutor or sentencing judge that that submission on rehabilitation would not be accepted – where the sentencing judge did not refer to the delay since arrest or the rehabilitation submission – whether the sentencing judge erred by omitting to take the delay and rehabilitation of the applicant into account in exercising the sentencing discretion

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was sentenced to two years imprisonment suspended after two months for trafficking in cannabis – where the applicant’s de facto partner and co-offender was sentenced to three years imprisonment suspended after six months for trafficking in cannabis – where the applicant was not the principal offender, had been a drug addict, had eight dependent children, and had rehabilitated herself since arrest – where the applicant argued the sentencing judge, in imposing actual imprisonment, gave insufficient weight to the effect of imprisonment on the applicant’s children – consideration of the application of the parity principle and principle of equal justice to persons who are not co-offenders – whether, in re-exercising the sentencing discretion, the Court ought to impose a different sentence – whether a period of actual imprisonment ought to be imposed

Farrugia v The Queen (2011) 32 VR 140; [2011] VSCA 24, discussed
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered
R v AAH & AAG (2009) 198 A Crim R 1; [2009] QCA 321, cited
R v Burton, unreported, North J, SC No 65 of 2013, 2 December 2013,…

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R v Illin [2014] QCA 285
Case
[2014] QCA 285
Decision Date

CaseChat Overview and Summary

The case of R v Illin involved the appellant, who had pleaded guilty to trafficking in the dangerous drug cannabis, challenging the sentence imposed by the trial court. The appellant was sentenced to two years imprisonment, suspended after two months, for an operational period of two years. The Court of Appeal was tasked with determining whether the trial court had erred in its sentencing decision, specifically by failing to consider the delay between arrest and sentencing and the appellant’s submission of rehabilitation.

The central legal issues before the Court of Appeal were whether the sentencing judge erred by not taking into account the delay since arrest and the submission on rehabilitation, and whether the sentencing judge gave insufficient weight to the impact of imprisonment on the appellant's eight dependent children. The Court also considered whether the parity principle and the principle of equal justice applied in the context of the sentencing of co-offenders who were not in the same position.

The Court found that the sentencing judge had indeed erred by not considering the delay and the submission on rehabilitation, and by not adequately weighing the impact of imprisonment on the appellant's children. The Court held that the appellant's role in the offence was not that of a principal offender and that she had rehabilitated herself since her arrest. Consequently, the Court concluded that a different sentence should be imposed, taking these factors into account. The Court varied the period after which the sentence of imprisonment is suspended from two months to 40 days, while confirming the sentence in all other respects.

The final orders of the Court were that the application be granted, the appeal allowed, the sentence varied as specified, and the sentence otherwise confirmed. This decision highlights the importance of considering rehabilitation and the impact on dependent children in sentencing, particularly when there are delays in the judicial process.

Orders

Orders of the court

Delivered ex tempore on 24 October 2014:

1. The application be granted.

2. The appeal be allowed.

3. The sentence imposed in the trial division be varied by varying the period after which the sentence of imprisonment is suspended from two months to a period of 40 days.

4. The sentence imposed in the trial division otherwise be confirmed.

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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