R v McIntyre - [2002] QCA 54

[2002] QCA 54

COURT OF APPEAL

McMURDO P
DAVIES JA
BYRNE J

CA No 33 of 2001

THE QUEEN

LESLIE McINTYRE

BRISBANE

..DATE 27/02/2002

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty to one count of trafficking in heroin, three counts of possession of heroin and six counts of supplying heroin. She was sentenced on the offence of trafficking to 11 years imprisonment with a recommendation for release on parole after three and a-half years. No sentence was imposed on the remaining counts which were particulars of the offence of trafficking.

The applicant now appears on her own behalf although she has adopted in her outline many of the helpful written submissions prepared by Mr Devereux of the Public Defender's Office who was to appear for her when this matter was last before the Court. The matter was then adjourned to allow this applicant to place in affidavit form any complaints she wished to maintain against her barrister at sentence to give the prosecution an opportunity to meet those claims.

She has not complied with these directions and has indicated to the Court that she is now no longer pursuing her complaints against her barrister at sentence. Her central grievance is that the sentence imposed upon her was manifestly excessive.

On 31 July 2000 in Cairns the applicant pleaded guilty to three counts of possession of a dangerous drug and two counts of supplying a dangerous drug but not guilty to the remaining counts. The indictment was amended to change the commencement date of the trafficking from 1 January 1995 to 1 January 1994. The jury which had been empanelled was discharged and the trial was adjourned to 3 August 2000 when the applicant pleaded guilty to the amended count 1. The learned sentencing Judge ordered a presentence and psychiatric report. It seems the prosecution case was that the applicant was more involved in the trafficking than the applicant was willing to concede.

The sentencing proceeding recommenced on 16 November 2000 in Brisbane when the co-accused, Susan-Maree Kapper, gave evidence in the prosecution case. Kapper had prepared a statement about the appellant's involvement in these offences from surveillance tapes. Kapper said that from early 1994 when she lived in Kuranda she and her partner, William Ogden, a former partner of the applicant and father of her first child, brought heroin from the applicant on a daily basis for $100. The applicant was due to have a baby and asked Kapper to take over her heroin business. Kapper sold four grams of heroin and bought a mobile phone. The applicant referred buyers to Kapper who would sell them heroin which she purchased from the applicant at $800 a gram, on-selling it for $1,000 a gram. She also used some of the heroin for her own use. Kapper met the applicant's source of heroin, Glen Evans and Annalise Mackieivicz, and dealt directly with them from shortly before Christmas 1994. By early 1995 the applicant was not involved in the heroin business. Kapper…

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 McIntyre

Details

AGLC: R v McIntyre [2002] QCA 54
Case: [2002] QCA 54
Decision Date: 27/02/2002

CaseChat Overview and Summary

In the case of R v McIntyre, the applicant, Leslie McIntyre, appealed against her sentence of eleven years' imprisonment for trafficking in heroin, which was imposed by the sentencing judge. McIntyre had pleaded guilty to the trafficking charge and several other drug-related offences. The appeal centred around the applicant's contention that her sentence was manifestly excessive. The court was required to decide whether the sentence was disproportionate when compared to the sentences imposed on the co-accused, taking into account the facts and circumstances of the case.

The court examined the facts of the case, including the evidence of co-accused Susan-Maree Kapper, who testified that McIntyre had been actively involved in the heroin trade. McIntyre disputed some of the claims made by Kapper, but the court found that Kapper's evidence was unchallenged and the judge was entitled to act on it to the extent that he did. The court also considered the sentences imposed on the co-accused, finding that while the sentences varied, they supported the sentence imposed on McIntyre. The court held that McIntyre's sentence was within the appropriate range for such offences and was not so disparate as to engender a justifiable sense of grievance.

The Court of Appeal dismissed McIntyre's appeal, holding that the sentence imposed was not manifestly excessive. The order of the court was that the application was refused.

Orders