R v Short - [2010] QCA 206

SUPREME COURT OF QUEENSLAND

CITATION:

R v Short [2010] QCA 206

PARTIES:

R
v
SHORT, Belinda Jane
(applicant)

FILE NO/S:

CA No 41 of 2010
CA No 70 of 2010
SC No 81 of 2010
SC No 1084 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2010

JUDGES:

Chief Justice and Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on her pleas of guilty of one count of permitting premises to be used for unlawfully producing dangerous drugs and three counts of unlawfully possessing dangerous drugs – where the applicant committed those offences during the four year operational period of a twelve month wholly suspended sentence – where the applicant had already been ordered to serve five days imprisonment for an earlier contravention of the suspended sentence – where the sentencing judge ordered the applicant serve the balance of the suspended sentence – where the applicant was further ordered to serve three years imprisonment for the first count, and lesser concurrent terms for the remaining three counts, cumulatively upon the activated suspended sentence – where the sentencing judge fixed a parole eligibility date after eleven months imprisonment – whether the whole of the suspended sentence should have been activated – whether cumulative sentences should have been imposed – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 142(1)(b), s 147(2), s 147(3), s 147(3)(c)

R v Day & Gill[2005] QCA 100, cited
R v Hesketh; ex parte A-G (Qld)[2004] QCA 116, cited
R v Hoad (1989) 42 A Crim R 312, applied
R v Jeffs[2005] QCA 35, cited
R v King, unreported, Mullins J, Supreme Court of Queensland, No. 885 of 2005, 9 November 2006, cited
R v Martin [2002] QCA 513, cited
R v Oldfield [1999] QCA 85, cited
R v Sabine[2007] QCA 220, considered
R v Small, unreported, Ann Lyons J, Supreme Court of Queensland, No. 962 of 2005, 28 November 2006, cited
R v Smith, unreported, Kelly J, Supreme Court of Queensland, No. 245 of 1987, 27 February 1987, cited
R v Spiteri, unreported, Cullinane J, Supreme Court of Queensland, No. 124 of 1995, 2 June 1995, cited
R v Stevens[2006] QCA 361,cited
R v Stewart, unreported, Thomas J, Supreme Court of Queensland, No. 326 of 1996, 22 January 1997, cited

COUNSEL:

A J Kimmins, with Y Chekirova, for the applicant
M B Lehane for the respondent

SOLICITORS:

Ryan and Bosscher for the applicant
Department of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE:I have had the advantage of reading the reasons for judgment…

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 Short

Details

AGLC: R v Short [2010] QCA 206
Case: [2010] QCA 206
Decision Date: 6 August 2010

CaseChat Overview and Summary

The appellant, R, appealed against her sentence, arguing that the whole of the suspended sentence should not have been activated, that cumulative sentences should not have been imposed, and that the sentence imposed was manifestly excessive. The appellant was convicted on her pleas of guilty of one count of permitting premises to be used for unlawfully producing dangerous drugs and three counts of unlawfully possessing dangerous drugs. The offences were committed during the operational period of a twelve month wholly suspended sentence, which was imposed for an earlier contravention of bail conditions. The appellant had already been ordered to serve five days imprisonment for the earlier contravention. The sentencing judge ordered the appellant to serve the balance of the suspended sentence and further ordered the appellant to serve three years imprisonment for the first count, and lesser concurrent terms for the remaining three counts, cumulatively upon the activated suspended sentence. The sentencing judge fixed a parole eligibility date after eleven months imprisonment.

The legal issues before the court were whether the whole of the suspended sentence should have been activated, whether cumulative sentences should have been imposed, and whether the sentence imposed was manifestly excessive. The court held that the sentencing judge did not err in activating the whole of the suspended sentence, as the appellant had committed further offences during the operational period of the suspended sentence. The court further held that the sentencing judge did not err in imposing cumulative sentences, as the offences were not trivial and required punishment. Finally, the court held that the sentence imposed was not manifestly excessive, as the sentencing judge had considered the appellant's personal circumstances and the need for deterrence.

The appeal was refused. The court held that the sentencing judge had considered all relevant factors in imposing the sentence and that the sentence was not manifestly excessive. The court also held that the appellant had failed to demonstrate any error on the part of the sentencing judge in activating the whole of the suspended sentence and imposing cumulative sentences. The court found that the appellant's sentence was appropriate and proportionate to the seriousness of her offences. The application was dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Short [2010] QCA 206
PARTIES:	R v SHORT, Belinda Jane (applicant)
FILE NO/S:	CA No 41 of 2010 CA No 70 of 2010 SC No 81 of 2010 SC No 1084 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 July 2010
JUDGES:	Chief Justice and Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on her pleas of guilty of one count of permitting premises to be used for unlawfully producing dangerous drugs and three counts of unlawfully possessing dangerous drugs – where the applicant committed those offences during the four year operational period of a twelve month wholly suspended sentence – where the applicant had already been ordered to serve five days imprisonment for an earlier contravention of the suspended sentence – where the sentencing judge ordered the applicant serve the balance of the suspended sentence – where the applicant was further ordered to serve three years imprisonment for the first count, and lesser concurrent terms for the remaining three counts, cumulatively upon the activated suspended sentence – where the sentencing judge fixed a parole eligibility date after eleven months imprisonment – whether the whole of the suspended sentence should have been activated – whether cumulative sentences should have been imposed – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 142(1)(b), s 147(2), s 147(3), s 147(3)(c) R v Day & Gill[2005] QCA 100, cited R v Hesketh; ex parte A-G (Qld)[2004] QCA 116, cited R v Hoad (1989) 42 A Crim R 312, applied R v Jeffs[2005] QCA 35, cited R v King, unreported, Mullins J, Supreme Court of Queensland, No. 885 of 2005, 9 November 2006, cited R v Martin [2002] QCA 513, cited R v Oldfield [1999] QCA 85, cited R v Sabine[2007] QCA 220, considered R v Small, unreported, Ann Lyons J, Supreme Court of Queensland, No. 962 of 2005, 28 November 2006, cited R v Smith, unreported, Kelly J, Supreme Court of Queensland, No. 245 of 1987, 27 February 1987, cited R v Spiteri, unreported, Cullinane J, Supreme Court of Queensland, No. 124 of 1995, 2 June 1995, cited R v Stevens[2006] QCA 361,cited R v Stewart, unreported, Thomas J, Supreme Court of Queensland, No. 326 of 1996, 22 January 1997, cited
COUNSEL:	A J Kimmins, with Y Chekirova, for the applicant M B Lehane for the respondent
SOLICITORS:	Ryan and Bosscher for the applicant Department of Public Prosecutions (Queensland) for the respondent