R v McLean - [2021] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

R v McLean [2021] QCA 70

PARTIES:

R
v
McLEAN, Melissa Jane
(applicant)

FILE NO/S:

CA No 166 of 2020
SC No 16 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Mackay – Date of Sentence: 22 July 2020 (Crow J)

DELIVERED ON:

13 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2021

JUDGES:

Sofronoff P and McMurdo and Mullins JJA

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The sentence imposed for count 2 is set aside.

4.   The parole eligibility date is set aside.

5.   For count 2, the applicant is sentenced to imprisonment for a term of four years to be suspended after the applicant has served 12 months, such suspension to be operational for four years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on count 2 of possessing and trafficking a dangerous drug (methylamphetamine) – where the applicant was given a head sentence on count 2 to five years imprisonment to reflect the global criminality of her offending – where the applicant had no prior criminal history before the offending – where the applicant was 23 years old at the time of offending, came from a disadvantaged background and had a child after her arrest –– whether the sentencing judge was not assisted with proper comparable decisions which did not take into account the applicant’s personal circumstances which resulted in a head sentence that was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s9(3)

R v Blumke[2015] QCA 264, considered
R v Mikula[2015] QCA 102, considered

COUNSEL:

J R Jones for the applicant
S J Hedge for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: The applicant is a young woman who is about to turn 26 years old. She was raised by her mother, who was a violent woman and a heavy user of alcohol and other drugs. She met her father for the first time when she was 16 years old and the meeting did not have a happy outcome. He too was a drunk. The applicant left home at about that time and began to fend for herself. She had finished school after completing grade 10. She managed to get a job at a petrol station and she took up with an older man. She then got a job at one of the mines in central Queensland. After that job she began to look after her ailing paternal grandmother. Her father took the grandmother’s pension money for himself but, nevertheless, the applicant managed to support her grandmother.
This was a devastating period for the applicant. Her sister died from a drug overdose. Shortly after her death the applicant’s brother was seriously injured in a car accident and was confined to a wheelchair.…

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 McLean

Details

AGLC: R v McLean [2021] QCA 70
Case: [2021] QCA 70
Decision Date: 13 April 2021

CaseChat Overview and Summary

The case of R v McLean involved the appellant, McLean, who was convicted on count 2 of possessing and trafficking a dangerous drug, methylamphetamine. McLean appealed against her sentence, arguing it was manifestly excessive. The court had to decide whether the sentence imposed was appropriate, given McLean's personal circumstances, including her lack of prior criminal history, her disadvantaged background, and her status as a young mother at the time of the offence.

The court considered whether the sentencing judge was provided with and relied upon proper comparable decisions, and whether those decisions adequately considered McLean's personal circumstances. The court noted that the sentencing judge did not have the benefit of proper comparable decisions that factored in McLean's background and personal situation, leading to a sentence that was perceived as manifestly excessive. The court concluded that the sentencing judge's failure to consider McLean's circumstances appropriately influenced the sentence imposed.

The court granted leave to appeal and allowed the appeal, setting aside the original sentence and parole eligibility date. The court sentenced McLean to imprisonment for a term of four years, to be suspended after 12 months, with the suspension operational for four years. This decision reflects the court's consideration of McLean's personal circumstances and the need for a more balanced approach in the sentencing process.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. The sentence imposed for count 2 is set aside.

4. The parole eligibility date is set aside.

5. For count 2, the applicant is sentenced to imprisonment for a term of four years to be suspended after the applicant has served 12 months, such suspension to be operational for four years.

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 McLean [2021] QCA 70
PARTIES:	R v McLEAN, Melissa Jane (applicant)
FILE NO/S:	CA No 166 of 2020 SC No 16 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Mackay – Date of Sentence: 22 July 2020 (Crow J)
DELIVERED ON:	13 April 2021
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2021
JUDGES:	Sofronoff P and McMurdo and Mullins JJA
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed for count 2 is set aside. 4. The parole eligibility date is set aside. 5. For count 2, the applicant is sentenced to imprisonment for a term of four years to be suspended after the applicant has served 12 months, such suspension to be operational for four years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on count 2 of possessing and trafficking a dangerous drug (methylamphetamine) – where the applicant was given a head sentence on count 2 to five years imprisonment to reflect the global criminality of her offending – where the applicant had no prior criminal history before the offending – where the applicant was 23 years old at the time of offending, came from a disadvantaged background and had a child after her arrest –– whether the sentencing judge was not assisted with proper comparable decisions which did not take into account the applicant’s personal circumstances which resulted in a head sentence that was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s9(3) R v Blumke[2015] QCA 264, considered R v Mikula[2015] QCA 102, considered
COUNSEL:	J R Jones for the applicant S J Hedge for the respondent
SOLICITORS:	Potts Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent