R v Johansson and McLachlan - [2001] QCA 406

SUPREME COURT OF QUEENSLAND

CITATION: R v Johansson & McLachlan [2001] QCA 406

PARTIES: R

v

JOHANSSON, Paul Charles

(applicant)

McLACHLAN, Jennifer Elizabeth

(applicant)

FILE NO/S: CA No 158 of 2001

CA No 159 of 2001

SC No 144 of 2001

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 28 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 13 September 2001

JUDGES: McPherson JA, Chesterman and Atkinson JJ
Separate reasons for judgment of each member of the court.
McPherson JA and Chesterman J concurring as to the order made, Atkinson J dissenting in part.

ORDER: Applications for leave to appeal against sentence dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – where first applicant pleaded guilty to trafficking in heroin – sentenced to imprisonment for seven years with a recommendation for parole after two and a half years – where second applicant pleaded guilty to two counts of supplying dangerous drug and one count of possessing dangerous drug with circumstance of aggravation – sentenced to imprisonment for two years suspended after six months with operational period of three years – whether sentences manifestly excessive – consideration of aggravating and mitigating factors

Penalties and Sentences Act 1992 (Qld), s 9(1), s 112 and s 113

R v Clare [1999] QCA 227, CA No 79 of 1999, 17 June 1999, referred to
R v Clemens, CA No 404 of 1997, 17 April 1998, referred to

R v Denniss, CA 339 of 1995, 26 October 1995, considered

R v Hamilton [2000] QCA 286, CA No 75 of 2000, 21 July 2000, referred to
R v Hauser [1999] QCA 345, CA No 345 of 1999, 20 August 1999, considered

R v Hoa Dang [1999] QCA 414, CA No 239 of 1999, 1 October 1999, referred to
R v Izatt [1999] QCA 290, CA No 290 of 1999, 28 July 1999, considered
R v Le [1996] 2 Qd R 516, considered

R v M; Ex parte Attorney-General [1999] QCA 442, CA No 251 of 1999, 2 November 1999, referred to

R v Maxfield [2000] QCA 320, CA No 19 of 2000, 8 August 2000, referred to
R v Pascoe, CA No 184 of 1997, considered
R v Phillips, CA No 427 of 1993, 25 October 1993, considered
R v Ross [1995] QCA 134, CA No 24 of 1995, 7 April 1995, referred to
R v Taylor and Napatali [1999] QCA 323, CA No 157, 158 of 1999, 20 August 1999, considered

R v Taylor and Napatali; Ex parte Attorney-General, CA No 251 of 1999, 2 November 1999, considered

R v Tran, CA No 330 of 1998, 16 September 1998, considered
R v Trotter, CA No 475 of 1993, 3 November 1993, considered

R v Watson, CA No 105 of 1991, 28 May 1991, considered

R v…

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.

Keep reading for free

Create a free CaseChat account to read R v Johansson and McLachlan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] QCA 406
Decision Date: 28 September 2001

CaseChat Overview and Summary

In the matter of R v Johansson and McLachlan, the applicants Johansson and McLachlan were convicted of drug-related offences and appealed against their respective sentences. Johansson pleaded guilty to trafficking in heroin and was sentenced to seven years imprisonment with a recommendation for parole after two and a half years. McLachlan pleaded guilty to two counts of supplying a dangerous drug and one count of possessing a dangerous drug with a circumstance of aggravation, and was sentenced to two years imprisonment, suspended after six months, with an operational period of three years. The applicants sought to appeal their sentences on the ground that they were manifestly excessive.

The legal issue before the court was whether the sentences imposed by the trial judge were manifestly excessive, taking into account the relevant aggravating and mitigating factors. The court noted that in determining the appropriate sentence for an offence, the court must consider all relevant aggravating and mitigating factors. The court also noted that the sentence imposed must not be manifestly excessive having regard to the principles of sentencing, including the need for deterrence, denunciation, and rehabilitation.

The court held that the sentences imposed by the trial judge were not manifestly excessive. The court found that the trial judge had properly considered the relevant aggravating and mitigating factors and had exercised his discretion in a manner consistent with the principles of sentencing. The court also noted that the sentences imposed were within the range of sentences typically imposed for similar offences. Accordingly, the applications for leave to appeal against sentence were dismissed.

No further orders were made by the court.

Orders

Orders of the court

Applications for leave to appeal against sentence dismissed

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 Johansson & McLachlan [2001] QCA 406
PARTIES:	R
v
JOHANSSON, Paul Charles
(applicant)
McLACHLAN, Jennifer Elizabeth
(applicant)
FILE NO/S:	CA No 158 of 2001
CA No 159 of 2001
SC No 144 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 September 2001
DELIVERED AT:	Brisbane
HEARING DATE:	13 September 2001
JUDGES:	McPherson JA, Chesterman and Atkinson JJ Separate reasons for judgment of each member of the court. McPherson JA and Chesterman J concurring as to the order made, Atkinson J dissenting in part.
ORDER:	Applications for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – where first applicant pleaded guilty to trafficking in heroin – sentenced to imprisonment for seven years with a recommendation for parole after two and a half years – where second applicant pleaded guilty to two counts of supplying dangerous drug and one count of possessing dangerous drug with circumstance of aggravation – sentenced to imprisonment for two years suspended after six months with operational period of three years – whether sentences manifestly excessive – consideration of aggravating and mitigating factors
Penalties and Sentences Act 1992 (Qld), s 9(1), s 112 and s 113 R v Clare [1999] QCA 227, CA No 79 of 1999, 17 June 1999, referred to R v Clemens, CA No 404 of 1997, 17 April 1998, referred to R v Denniss, CA 339 of 1995, 26 October 1995, considered R v Hamilton [2000] QCA 286, CA No 75 of 2000, 21 July 2000, referred to R v Hauser [1999] QCA 345, CA No 345 of 1999, 20 August 1999, considered R v Hoa Dang [1999] QCA 414, CA No 239 of 1999, 1 October 1999, referred to R v Izatt [1999] QCA 290, CA No 290 of 1999, 28 July 1999, considered R v Le [1996] 2 Qd R 516, considered R v M; Ex parte Attorney-General [1999] QCA 442, CA No 251 of 1999, 2 November 1999, referred to R v Maxfield [2000] QCA 320, CA No 19 of 2000, 8 August 2000, referred to R v Pascoe, CA No 184 of 1997, considered R v Phillips, CA No 427 of 1993, 25 October 1993, considered R v Ross [1995] QCA 134, CA No 24 of 1995, 7 April 1995, referred to R v Taylor and Napatali [1999] QCA 323, CA No 157, 158 of 1999, 20 August 1999, considered R v Taylor and Napatali; Ex parte Attorney-General, CA No 251 of 1999, 2 November 1999, considered R v Tran, CA No 330 of 1998, 16 September 1998, considered R v Trotter, CA No 475 of 1993, 3 November 1993, considered R v Watson, CA No 105 of 1991, 28 May 1991, considered R v…