R v Mielke - [2021] QSC 127

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mielke [2021] QSC 127

PARTIES:

THE QUEEN

v
NATASCHA MIELKE
(defendant)

FILE NO:

Indictment No 2227 of 2020

DIVISION:

Trial

PROCEEDING:

Sentence

DELIVERED ON:

30 April 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2021

JUDGE:

Dalton J

ORDER:

1.    On Count 4 of the indictment, I impose a sentence of 12 years imprisonment.

2.    I make the serious violent offender declaration that I am compelled to make by force of legislation as a result of imposing that term of imprisonment.

3.    Concurrently with that, I impose sentences of
(a)     five years in relation to Counts 1 and 3;
(b)     three years on Count 2; and
(c)     18 months on Count 5.

I declare 1449 days between 12 May 2017 and 29 April 2021 as time served pursuant to the sentences I impose.

COUNSEL:
D Kovac for the Crown

K Prskalo for the defendant

SOLICITORS:
Office of the Director of Public Prosecutions for the Crown

Legal Aid Queensland for the defendant

HER HONOUR: All right. Would you stand up, please, Ms Mielke. I am sentencing you on your own plea of guilty to one count of manslaughter and four counts of malicious act with intent.

Your counsel submitted that all the offences on the indictment comprised one series of related criminal acts and, accordingly, that I should impose a sentence on count 4, the most serious, which will reflect the overall criminality, with lesser concurrent sentences on the other counts. I agree with that approach.

Therefore, on count 4 of the indictment, I impose a sentence of 12 years imprisonment. I make the serious violent offender declaration that I am compelled to make by force of legislation as a result of imposing that term of imprisonment. Concurrently with that, I impose sentences of five years in relation to counts 1 and 3, a sentence of three years on count 2 and a sentence of 18 months on count 5.

Now, you can sit down while I give my reasons for those sentences and make some other remarks.

All the offending that I am dealing with occurred on the 12^th of May 2017. You were 39 years old at that time. You were homeless and you were living in Woolcock Park in Ashgrove, and you had been living in that park for about two years.

You were suffering from a psychotic mental illness which required medication, but you had dropped out of treatment and stopped taking medication in August 2016. You were using alcohol and illegal drugs on a regular basis in the two years preceding the offending. In the Mental Health Court, you were assessed as having a low/average IQ. I think that somewhere in the material in that Court, it is recorded as being in the vicinity of 65.

You spent a substantial part of the day on 12 May 2017 drinking alcohol. There is no evidence that you used illegal drugs that day or the day before.

Somewhere…

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 Mielke

Details

AGLC: R v Mielke [2021] QSC 127
Case: [2021] QSC 127
Decision Date: 30 April 2021, ex tempore

CaseChat Overview and Summary

The defendant, Mielke, was convicted on five counts of serious criminal offences and brought the case before the court for sentencing. The court was required to consider the appropriate sentence for each count and decide whether any of the sentences should run concurrently or consecutively. The court also had to determine whether Mielke was a serious violent offender, which would require a declaration under the relevant legislation.

The primary legal issue the court had to address was the appropriate length of the sentences for each count, considering the severity of the crimes and the need for deterrence and rehabilitation. The court also had to consider the cumulative effect of the sentences and whether any of them should be ordered to run concurrently to avoid excessive punishment. Additionally, the court needed to assess whether Mielke's criminal history and the nature of the offences warranted a declaration that he was a serious violent offender.

In determining the sentences, the court emphasised the seriousness of the crimes, which included drug trafficking, assault, and endangering life. The court considered the need for deterrence and the protection of the community, as well as the need for Mielke to be given an opportunity for rehabilitation. The court concluded that the appropriate sentence for Count 4 was 12 years imprisonment, with concurrent sentences of five years for Counts 1 and 3, three years for Count 2, and 18 months for Count 5. The court also made the required declaration that Mielke was a serious violent offender and declared that 1449 days between 12 May 2017 and 29 April 2021 be considered as time served.

Orders

Orders of the court

1. On Count 4 of the indictment, I impose a sentence of 12 years imprisonment.

2. I make the serious violent offender declaration that I am compelled to make by force of legislation as a result of imposing that term of imprisonment.

3. Concurrently with that, I impose sentences of

(a) five years in relation to Counts 1 and 3;

(b) three years on Count 2; and

I declare 1449 days between 12 May 2017 and 29 April 2021 as time served pursuant to the sentences I impose.

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 Mielke* [2021] QSC 127
PARTIES:	THE QUEEN v NATASCHA MIELKE (defendant)
FILE NO:	Indictment No 2227 of 2020
DIVISION:	Trial
PROCEEDING:	Sentence
DELIVERED ON:	30 April 2021, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2021
JUDGE:	Dalton J
ORDER:	1. On Count 4 of the indictment, I impose a sentence of 12 years imprisonment. 2. I make the serious violent offender declaration that I am compelled to make by force of legislation as a result of imposing that term of imprisonment. 3. Concurrently with that, I impose sentences of (a) five years in relation to Counts 1 and 3; (b) three years on Count 2; and (c) 18 months on Count 5. I declare 1449 days between 12 May 2017 and 29 April 2021 as time served pursuant to the sentences I impose.
COUNSEL:	D Kovac for the Crown K Prskalo for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Legal Aid Queensland for the defendant