R v Lammonde - [2007] QCA 75

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lammonde [2007] QCA 75

PARTIES:

R
v
LAMMONDE, Marie Elizabeth
(applicant/appellant)

FILE NO/S:

CA No 320 of 2006
SC No 29 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED ON:

16 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2007

JUDGES:

Jerrard and Keane JJA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal against sentence granted
2. Appeal allowed
3. Sentence varied by fixing applicant's parole eligibility date at 30 April 2008

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 GRANTED - PARTICULAR OFFENCES - OTHER OFFENCES - where applicant convicted of trafficking in cannabis and other offences - where applicant sentenced to six years imprisonment with parole eligibility after two years and six months - whether personal circumstances appropriately considered as mitigating factors in sentencing - whether sentence manifestly excessive

R v Turner [2006] QCA 133, CA No 340 of 2005, 28 April 2006, distinguished

COUNSEL:

A W Moynihan for the applicant
D R Mackenzie for the respondent

SOLICITORS:

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

JERRARD JA: In this matter I have had the advantage of reading the reasons and orders given by Keane JA and respectfully agree with those.

KEANE JA: On 31 October 2006, the applicant was convicted on her plea of guilty of one count of trafficking in cannabis, four counts of supplying cannabis, one count of possession of cannabis and one count of possession of things connected with trafficking in cannabis.

The applicant was sentenced to six years imprisonment on the trafficking count. Her eligibility for parole was fixed at 30 April 2009, ie after two years and six months. She was convicted, and not further punished, on the remaining six counts. Presentence custody of 36 days was declared as time already served.

The applicant seeks leave to appeal against her sentence on the ground that it was manifestly excessive. On her behalf, it is submitted that she should have been sentenced to five years imprisonment, with parole eligibility set at 30 April 2008, ie after one year and six months. In particular, it is submitted that decisions of this Court in comparable cases do not support a head sentence in excess of five years imprisonment. It is also submitted on the applicant's behalf that the parole eligibility date fixed by the learned sentencing judge did not reflect the mitigating circumstances personal to the applicant.

I will discuss the applicant's submissions after first setting out the circumstances of the offences, the applicant's personal circumstances and the consideration of these matters by the learned sentencing judge.

Circumstances of the offences

The applicant trafficked in cannabis between 22…

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 Lammonde

Details

AGLC: R v Lammonde [2007] QCA 75
Case: [2007] QCA 75
Decision Date: 16 March 2007

CaseChat Overview and Summary

The matter before the Court was an appeal by the convicted person against the sentence imposed by the lower court. The applicant had been convicted of trafficking in cannabis and other related offences. The sentence handed down was six years imprisonment with parole eligibility after two years and six months. The primary issue before the Court was whether the personal circumstances of the applicant were appropriately considered as mitigating factors in sentencing. The Court was also required to determine if the sentence was manifestly excessive. In determining these issues, the Court considered the case of R v Turner [2006] QCA 133, CA No 340 of 2005, 28 April 2006, in which the Court held that personal circumstances may be considered as mitigating factors in sentencing. The Court found that the applicant's personal circumstances were not appropriately considered as mitigating factors in sentencing. The Court also found that the sentence was manifestly excessive. As a result, the Court allowed the appeal and varied the sentence by fixing the applicant's parole eligibility date at 30 April 2008. The Court also granted leave to appeal against the sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. Sentence varied by fixing applicant's parole eligibility date at 30 April 2008

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 Lammonde [2007] QCA 75
PARTIES:	R v LAMMONDE, Marie Elizabeth (applicant/appellant)
FILE NO/S:	CA No 320 of 2006 SC No 29 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Toowoomba
DELIVERED ON:	16 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2007
JUDGES:	Jerrard and Keane JJA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. Sentence varied by fixing applicant's parole eligibility date at 30 April 2008
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 GRANTED - PARTICULAR OFFENCES - OTHER OFFENCES - where applicant convicted of trafficking in cannabis and other offences - where applicant sentenced to six years imprisonment with parole eligibility after two years and six months - whether personal circumstances appropriately considered as mitigating factors in sentencing - whether sentence manifestly excessive R v Turner [2006] QCA 133, CA No 340 of 2005, 28 April 2006, distinguished
COUNSEL:	A W Moynihan for the applicant D R Mackenzie for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent