R v Manning - [2007] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

R v Manning [2007] QCA 145

PARTIES:

R
v
MANNING, Shannon Maree
(applicant/appellant)

FILE NO/S:

CA No 148 of 2006
SC No 308 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2007

JUDGES:

McMurdo P, Jerrard JA and Holmes JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application allowed
2. Appeal allowed
3. Set aside the sentence of seven years imprisonment on count 1 and substitute instead a sentence of five years imprisonment
4. Declare that a period of 261 days of pre-sentence custody before 12 May 2006 was time already served under the sentence of five years
5. Fix the appellant’s parole eligibility date as at 24 July 2007

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant’s then counsel made submissions at trial as to sentence without supporting evidence – where the applicant’s then counsel was invited by the trial judge to lead evidence supporting counsel’s submissions – where supporting evidence was not lead at trial by the applicant’s then counsel – whether the Court of Appeal should admit new evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN ALLOWED – GENERALLY – where the applicant pleaded guilty to 10 counts involving contravention of the Drugs Misuse Act 1986 (Qld) – where the applicant’s evidence at trial suggested that she was the dominant party in a trafficking arrangement with her then partner – where there was no evidence before the trial judge as to the applicant fearing her then partner – whether the sentence was manifestly excessive in light of the new evidence

Drugs Misuse Act 1986 (Qld)
Penalties and Sentences Act 1992 (Qld), s 161, s 188

R v Maniadis [1997] 1 Qd R 593, applied

COUNSEL:

G P Long SC for the applicant/appellant
D L Meredith for the respondent

SOLICITORS:

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

McMURDO P: I agree with Jerrard JA.

JERRARD JA: On 12 May 2006 Shannon Manning pleaded guilty to 10 counts involving offences against the Drugs Misuse Act 1986 (Qld), and was sentenced to seven years imprisonment, with a parole eligibility date of two years and 10 months after the start of that sentence. The learned sentencing judge declared that a substantial period of pre-sentence custody (261 days) was time already served within the meaning of s 161 of the Penalties and Sentences Act 1992 (Qld). Shannon Manning has applied for leave to appeal against the sentences imposed, contending that she was sentenced on a factual basis which was incorrect, and that in the result the sentence…

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 Manning

Details

AGLC: R v Manning [2007] QCA 145
Case: [2007] QCA 145
Decision Date: 4 May 2007

CaseChat Overview and Summary

The applicant, Manning, appealed against her sentence after being convicted on 10 counts involving contravention of the Drugs Misuse Act 1986 (Qld). Manning’s counsel made submissions at trial as to the appropriate sentence without leading any supporting evidence. The trial judge invited the counsel to lead evidence to support the submissions, but this did not occur. The Court of Appeal was asked to consider whether it should admit new evidence in light of the circumstances. The appeal also argued that the sentence was manifestly excessive given the new evidence presented, which suggested Manning was the dominant party in a trafficking arrangement with her then partner, and there was no evidence of her fearing her partner at the time of the trial.

The court considered whether the appeal was an appropriate avenue for admitting new evidence and whether the sentence was manifestly excessive. The court found that the new evidence was relevant and should have been led at trial. The court also noted that the evidence suggested Manning was the dominant party in the trafficking arrangement, and there was no evidence of her fearing her partner, which could have been mitigating factors. The court concluded that the sentence was manifestly excessive in light of the new evidence and the circumstances of the case.

The appeal was allowed, and the sentence was set aside and substituted with a sentence of five years imprisonment. The court declared that a period of 261 days of pre-sentence custody before 12 May 2006 was time already served under the sentence of five years. The appellant’s parole eligibility date was fixed as at 24 July 2007.

Orders

Orders of the court

1. Application allowed

2. Appeal allowed

3. Set aside the sentence of seven years imprisonment on count 1 and substitute instead a sentence of five years imprisonment

4. Declare that a period of 261 days of pre-sentence custody before 12 May 2006 was time already served under the sentence of five years

5. Fix the appellant’s parole eligibility date as at 24 July 2007

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 Manning [2007] QCA 145
PARTIES:	R v MANNING, Shannon Maree (applicant/appellant)
FILE NO/S:	CA No 148 of 2006 SC No 308 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2007
JUDGES:	McMurdo P, Jerrard JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application allowed 2. Appeal allowed 3. Set aside the sentence of seven years imprisonment on count 1 and substitute instead a sentence of five years imprisonment 4. Declare that a period of 261 days of pre-sentence custody before 12 May 2006 was time already served under the sentence of five years 5. Fix the appellant’s parole eligibility date as at 24 July 2007
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant’s then counsel made submissions at trial as to sentence without supporting evidence – where the applicant’s then counsel was invited by the trial judge to lead evidence supporting counsel’s submissions – where supporting evidence was not lead at trial by the applicant’s then counsel – whether the Court of Appeal should admit new evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – WHEN ALLOWED – GENERALLY – where the applicant pleaded guilty to 10 counts involving contravention of the Drugs Misuse Act 1986 (Qld) – where the applicant’s evidence at trial suggested that she was the dominant party in a trafficking arrangement with her then partner – where there was no evidence before the trial judge as to the applicant fearing her then partner – whether the sentence was manifestly excessive in light of the new evidence Drugs Misuse Act 1986 (Qld) Penalties and Sentences Act 1992 (Qld), s 161, s 188 R v Maniadis [1997] 1 Qd R 593, applied
COUNSEL:	G P Long SC for the applicant/appellant D L Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent