R v Poppa - [2005] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

R v Poppa [2005] QCA 157

PARTIES:

R
v
POPPA, Emilia

(applicant/appellant)

FILE NO/S:

CA No 40 of 2005

SC No 796 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2005

JUDGES:

McPherson and Jerrard JJA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence granted;

2. Appeal allowed to the extent of varying the sentence imposed by making a recommendation that the applicant be considered eligible to apply for post prison community based release after serving 3½ years’ imprisonment.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant sentenced to 9 years’ imprisonment for trafficking in heroin – where applicant entered a plea and had no prior criminal history – whether sufficient weight given to mitigating factors – whether sentence imposed manifestly excessive

Penalties and Sentences Act 1992 (Qld), Part 9A

R v Buciuman, Buciuman & Dobrovolski [1996] QCA 387; CA No 343 of 1996, CA No 342 of 1996, CA No 346 of 1996, 3 October 1996, distinguished
R v Hyde [2002] QCA 72; (2002) 128 A Crim R 304, distinguished
R v Hamlet [2002] QCA 71; CA No 300 of 2001, 13 March 2002, distinguished
R v Le; ex parte A-G (Qld) [2000] QCA 392; CA No 103 of 2000, 29 September 2000, distinguished
R v Mackiewicz [2000] QCA 171; CA No 437 of 1999, 10 May 2000, distinguished
R v Mai [2002] QCA 127; CA No 39 of 2002, 3 April 2002, distinguished

R v Truong & Nguyen [2001] QCA 98; CA No 278 of 2000, CA No 308 of 2000, 15 March 2001, distinguished

COUNSEL:

A Boe (sol) for the applicant

R G Martin SC for the respondent

SOLICITORS:

Boe Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I agree with the reasons of Philippides J for allowing this appeal against sentence. The sentence should be varied by the addition of the recommendation proposed by her Honour.

JERRARD JA: In this application I have read the reasons for judgment of Philippides J, and respectfully agree with Her Honour that it is appropriate to allow the appeal to the extent of varying the sentence imposed by making a recommendation for eligibility for release to the community after serving three and a half years. While the sentence imposed makes adequate allowance for Ms Poppa’s plea of guilty it does not sufficiently reflect the fact that she has no prior relevant convictions, which would be properly taken into consideration by the recommendation Philippides J proposes.

PHILIPPIDES J: The applicant, Emilia Poppa, seeks leave to appeal against a sentence imposed…

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 Poppa

Details

AGLC: R v Poppa [2005] QCA 157
Case: [2005] QCA 157
Decision Date: 13 May 2005

CaseChat Overview and Summary

The applicant, Poppa, was sentenced to nine years’ imprisonment for trafficking in heroin. The Crown Court of Australia was tasked with determining whether the sentence was manifestly excessive and whether sufficient weight was given to the mitigating factors, such as the applicant’s plea and lack of prior criminal history. The applicant argued that the sentence was too severe and did not appropriately balance the aggravating and mitigating factors.

The court reviewed the principles of sentencing, particularly focusing on the necessity to consider all relevant mitigating and aggravating circumstances. It examined the proportionality of the sentence in relation to the crime committed, and the applicant’s background and personal circumstances. The court highlighted that while trafficking in heroin is a serious offence, the applicant’s clean criminal record and early guilty plea were significant mitigating factors that should have been given more substantial weight.

After careful deliberation, the court found that the sentence was indeed manifestly excessive and did not adequately reflect the mitigating factors. Consequently, the application for leave to appeal against the sentence was granted, and the appeal was allowed to the extent of varying the sentence. The court recommended that the applicant be considered eligible to apply for post-prison community-based release after serving 3½ years’ imprisonment.

The final orders included granting the application for leave to appeal and allowing the appeal in part, by recommending that the applicant be considered for post-prison community-based release after serving 3½ years of the original nine-year sentence.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted;

2. Appeal allowed to the extent of varying the sentence imposed by making a recommendation that the applicant be considered eligible to apply for post prison community based release after serving 3½ years’ imprisonment.

Background

Background to the litigation

Full text does not contain this section.

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 Poppa [2005] QCA 157
PARTIES:	R v POPPA, Emilia (applicant/appellant)
FILE NO/S:	CA No 40 of 2005 SC No 796 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2005
JUDGES:	McPherson and Jerrard JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted; 2. Appeal allowed to the extent of varying the sentence imposed by making a recommendation that the applicant be considered eligible to apply for post prison community based release after serving 3½ years’ imprisonment.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant sentenced to 9 years’ imprisonment for trafficking in heroin – where applicant entered a plea and had no prior criminal history – whether sufficient weight given to mitigating factors – whether sentence imposed manifestly excessive Penalties and Sentences Act 1992 (Qld), Part 9A R v Buciuman, Buciuman & Dobrovolski [1996] QCA 387; CA No 343 of 1996, CA No 342 of 1996, CA No 346 of 1996, 3 October 1996, distinguished R v Hyde [2002] QCA 72; (2002) 128 A Crim R 304, distinguished R v Hamlet [2002] QCA 71; CA No 300 of 2001, 13 March 2002, distinguished R v Le; ex parte A-G (Qld) [2000] QCA 392; CA No 103 of 2000, 29 September 2000, distinguished R v Mackiewicz [2000] QCA 171; CA No 437 of 1999, 10 May 2000, distinguished R v Mai [2002] QCA 127; CA No 39 of 2002, 3 April 2002, distinguished R v Truong & Nguyen [2001] QCA 98; CA No 278 of 2000, CA No 308 of 2000, 15 March 2001, distinguished
COUNSEL:	A Boe (sol) for the applicant R G Martin SC for the respondent
SOLICITORS:	Boe Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent