R v Klumper - [2004] QCA 375

SUPREME COURT OF QUEENSLAND

CITATION:

R v Klumper [2004] QCA 375

PARTIES:

R
v
KLUMPER, Mary Rose
(applicant)

FILE NO/S:

CA No 323 of 2004
DC No 22 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED EX TEMPORE ON:

8 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2004

JUDGES:

McMurdo P and Jones and Chesterman JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant convicted on guilty plea of producing and possessing cannabis in excess of 500 grams and of possessing things used in connection with producing a dangerous drug – where sentenced to 12 months imprisonment suspended after four months with an operation period of 18 months – where applicant was 65 years old at time of sentence and had no prior criminal history – whether sentence was manifestly excessive

R v Laing [2003] QCA 92; CA No 411 of 2002, 6 March 2003, considered

COUNSEL:

A J Rafter SC for the applicant
R G Martin for the respondent

SOLICITORS:

Gilshenan & Luton for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant was convicted on 7 September this year of one count of producing a dangerous drug, cannabis, in excess of 500 grams (count 1); one count of possessing a dangerous drug, cannabis, in excess of 500 grams (count 2); and one count of possession of things used in connection with producing a dangerous drug (count 3). She was sentenced to 12 months imprisonment suspended after four months with an operational period of 18 months in respect of each offence. The applicant contends the sentence was manifestly excessive and that a fully suspended sentence should have been imposed.

The maximum penalty for counts 1 and 2 is 20 years imprisonment.

The applicant had no criminal history, pleaded guilty by
ex officio indictment and was 65 years old at sentence. She was born in Amsterdam in 1939 and migrated to Australia when she was 11 years old. She had a solid work history until she was diagnosed with depression about 10 years ago and had been on a disability pension for some years prior to sentence. No material was tendered at sentence and no further details given about her condition of depression.

The facts of her offending were as follows. Mrs Klumper was present at her home at Thornville near Crows Nest with the co-offender, Dennis Land, when police executed a search warrant. They found a large container holding 16 cannabis plants ranging in height from .5 to .9 of a metre. The container was partially covered with bales of sugar cane mulch and insulating material.…

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 Klumper

Details

AGLC: R v Klumper [2004] QCA 375
Case: [2004] QCA 375
Decision Date: 8 October 2004

CaseChat Overview and Summary

The case of R v Klumper involved the applicant who had been convicted of producing and possessing cannabis in excess of 500 grams, as well as possessing items used in connection with producing a dangerous drug. The applicant, aged 65 at the time of sentencing and with no prior criminal history, had entered a guilty plea. The court sentenced the applicant to 12 months imprisonment, suspended after four months, with an operational period of 18 months. The applicant subsequently sought leave to appeal against the sentence, arguing that it was manifestly excessive. The appeal against sentence was heard by the court, which had to determine whether the sentence imposed was manifestly excessive in the circumstances.

The central legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. This required consideration of the relevant factors and principles of sentencing, including the nature and circumstances of the offence, the personal circumstances of the offender, and the need for the sentence to reflect the seriousness of the offence while also considering deterrence and rehabilitation. The court was tasked with evaluating whether the sentence, given the applicant's age, lack of criminal history, and the plea of guilty, was beyond what could be considered a reasonable response to the offence.

In evaluating the sentence, the court considered the totality of the circumstances, including the seriousness of the offence and the personal attributes of the offender. The court noted that while the quantity of cannabis involved was significant, the applicant's age and lack of prior criminal history were mitigating factors. The court determined that the sentence, although severe, was not manifestly excessive given the statutory maximum penalty for the offences committed. The court concluded that the sentence was within the range of reasonable responses to the offences and did not amount to a manifestly excessive penalty.

The court refused the application for leave to appeal against sentence, finding that the sentence imposed was not manifestly excessive. No further orders were made.

Orders

Orders of the court

Application for leave to appeal against sentence refused

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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CITATION:	R v Klumper [2004] QCA 375
PARTIES:	R v KLUMPER, Mary Rose (applicant)
FILE NO/S:	CA No 323 of 2004 DC No 22 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Toowoomba
DELIVERED EX TEMPORE ON:	8 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	8 October 2004
JUDGES:	McMurdo P and Jones and Chesterman JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant convicted on guilty plea of producing and possessing cannabis in excess of 500 grams and of possessing things used in connection with producing a dangerous drug – where sentenced to 12 months imprisonment suspended after four months with an operation period of 18 months – where applicant was 65 years old at time of sentence and had no prior criminal history – whether sentence was manifestly excessive R v Laing [2003] QCA 92; CA No 411 of 2002, 6 March 2003, considered
COUNSEL:	A J Rafter SC for the applicant R G Martin for the respondent
SOLICITORS:	Gilshenan & Luton for the applicant Director of Public Prosecutions (Queensland) for the respondent