R v Lemmar - [2017] QCA 34

[2017] QCA 34

COURT OF APPEAL

FRASER JA
MORRISON JA
MULLINS J

CA No 217 of 2016
SC No 1071 of 2015

THE QUEEN

LEMMAR, Tania Maree Applicant

BRISBANE

WEDNESDAY, 15 MARCH 2017

JUDGMENT

FRASER JA: The applicant pleaded guilty to two counts of supplying a dangerous drug, one count of possessing a dangerous drug in excess of 2 grams (which I will call “aggravated drug possession”) and a further count of drug possession. On 1 July 2016, she was convicted of those offences and sentenced to concurrent terms of imprisonment of 20 months for the aggravated drug possession, 12 months for each count of supplying a dangerous drug and two months for the remaining count of drug possession. The sentencing judge fixed the parole release date as the date of sentence. The applicant has applied for leave to appeal against sentence on the grounds that the sentencing judge erred in finding that her possession of drugs in the aggravated drug possession count was for a commercial purpose and that the sentence was manifestly excessive.

The facts were set out in an agreed schedule. When police executed a search warrant at the house where the applicant lived with others, they found the following items in the applicant’s bedroom: a clip-seal bag, which was found to contain 3.272 grams of methylamphetamine within 4.393 grams of white substance (That is, 74.5 per cent of the substance was methylamphetamine); two used clip-seal bags; a clip-seal bag containing remnants of a white crystalline substance; a clip-seal bag containing less than one gram of cannabis; a black mobile phone; a used metal grinder; digital scales; and a sum of $890.

The last four items were the subject of summary offences charged against the applicant, but the prosecutor made it clear, and defence counsel expressed agreement, that the schedule of facts was relied upon only as establishing the facts for the indictable offences. I note that the police did not proceed with any charge in relation to the sum of money. During the search, the applicant made some admissions concerning the summary charges, which were not before the court. She also admitted to owning the clip-seal bags which contained methylamphetamine and cannabis.

The applicant told police that she had not used the mobile phone found in the search to assist friends in purchasing drugs. Analysis revealed that on 11 December 2014, the applicant’s mobile phone contacted “Taneil” and asked how many she wanted. The response was that she wanted, “1 pls”. Later, text messages indicated that the applicant organised “Clay” to meet Taneil at the cemetery. The Crown alleged that “1” referred to “1 point”, meaning that the applicant assisted in the supply by Clay to Taneil of .1 grams of methylamphetamine. On 14 December 2014, “Jules” asked the applicant whether she could “prepare it”. He sent a text message indicating that the applicant should prepare “2 p”. The applicant responded that, in fact, it was “2.5”, which means that she owed Jules. The Crown…

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 Lemmar

Details

AGLC: R v Lemmar [2017] QCA 34
Case: [2017] QCA 34
Decision Date: 15 MARCH 2017

CaseChat Overview and Summary

In the matter of the Queen versus Tania Maree Lemmar, the applicant pleaded guilty to two counts of supplying a dangerous drug, one count of aggravated drug possession, and a count of drug possession. Lemmar was sentenced to concurrent terms of imprisonment of 20 months for the aggravated drug possession, 12 months for each count of supplying a dangerous drug, and two months for the remaining count of drug possession. The sentencing judge fixed the parole release date as the date of sentence. Lemmar applied for leave to appeal against sentence, arguing that the sentencing judge erred in finding that her possession of drugs in the aggravated drug possession count was for a commercial purpose and that the sentence was manifestly excessive.

The legal issues before the court were whether the sentencing judge erred in finding that Lemmar's possession of drugs in the aggravated drug possession count was for a commercial purpose and whether the sentence was manifestly excessive. The court found that the sentencing judge's finding that Lemmar's possession of drugs in the aggravated drug possession count was for a commercial purpose was not in error, as the quantity of the drug and the text messages on her phone supported the finding. The court also found that the sentence for the offence of possessing cannabis was manifestly excessive and justified the court in interfering, although it would have no effect on the overall effect of sentence imposed upon Lemmar.

Lemmar applied for leave to appeal against sentence, and the court granted the application for leave to appeal against sentence only in relation to count 4, possession of cannabis. In relation to that count only, the court allowed the appeal, set aside the sentence imposed in the Trial Division, and instead ordered that a conviction be recorded, but that Lemmar be not further punished. The court refused the application for leave to appeal against sentence in all other respects.

Orders