R v Uqd - [2021] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION:

R v UQD [2021] QSC 50

PARTIES:

R
v

UQD

FILE NO/S:

BS No 819 of 2020

DIVISION:

Trial Division

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

Pleas of guilty entered on 18 February 2021. Sentences imposed on 25 February 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2021

JUDGE:

Davis J

ORDER:

Sentences

Count 1: Four years imprisonment wholly suspended from 25 February 2021 with an operational period of five years.

Count 2: Convicted with no further action taken.

Count 3: Convicted with no further action taken.

Count 4: Defendant released on probation for 12 months, convictions recorded.

CATCHWORDS:

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER MATTERS - where the defendant pleaded guilty on indictment to one count of trafficking in the dangerous drugs methylamphetamine and cannabis, one count of receiving tainted property and two further counts relating to drug offences - where the trafficking occurred over a period of approximately 6 months - where the defendant had a customer base of at least 14 people - where the defendant was a user of drugs during the course of the trafficking period - where the defendant took significant steps towards rehabilitation after her offending was discovered by police - where the offending occurred in the context of the defendant experiencing significant domestic violence perpetrated by her former husband - where the domestic violence suffered by the defendant and the steps taken by the defendant towards rehabilitation were significant factors taken into account in the exercise of the sentencing discretion to impose a sentence not requiring the defendant to serve actual time in custody immediately - where the defendant was sentenced to a term of imprisonment of four years wholly suspended with an operational period of 5 years in relation to the count of trafficking in dangerous drugs - where the defendant was sentenced to a probation order of 12 months in relation to the count of receiving tainted property

Criminal Code, s 2, s 398, s 433

Domestic and Family Violence Protection Act 2012 s 159
Drugs Misuse Act 1986, s 4, s 5, s 9, s 10
Penalties and Sentences Act 1992, s 9, s 13, s 90, s 95, s 96, s 144

R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8, considered
R v Casagrande [2009] QCA 1, cited
R v Engellenner [2012] QCA 6, cited
R v Hood [2005] 2 Qd R 54, applied
R v Ritzau [2017] QCA 17, considered
R v SBK [2009] QCA 107, cited
R v Stamatov [2017] QCA 158, followed
R v Wallace [2015] QCA 62, followed
York v R (2005) 225 CLR 466, cited

COUNSEL:

E O’Hanlon-Rose for the Crown

S Lewis for the Accused

SOLICITORS:

Director of Public Prosecutions for the Crown

Stewart Burr and Mayr for the Accused

Ms UQD,[1] you…

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 Uqd

Details

AGLC: R v UQD [2021] QSC 50
Case: [2021] QSC 50
Decision Date: 25 February 2021

CaseChat Overview and Summary

The defendant in this case pleaded guilty to trafficking in dangerous drugs, receiving tainted property and two further drug offences. The court was required to decide the appropriate sentence for the defendant, taking into account the nature and circumstances of the offending, as well as any mitigating factors. The defendant had been involved in trafficking drugs over a period of six months, with a customer base of at least 14 people. However, the court also took into account that the defendant had been a user of drugs during the period of offending, and had taken significant steps towards rehabilitation after her offending was discovered by police. Additionally, the court considered the context of the defendant's offending, which occurred in the context of significant domestic violence perpetrated by her former husband.

The court noted that the defendant's offending was serious, and that a term of imprisonment was appropriate. However, the court also noted that the defendant had taken significant steps towards rehabilitation, and that the domestic violence she had experienced were significant mitigating factors. The court therefore decided to impose a sentence that did not require the defendant to serve actual time in custody immediately. The defendant was sentenced to a term of imprisonment of four years wholly suspended with an operational period of five years in relation to the count of trafficking in dangerous drugs. The defendant was also sentenced to a probation order of 12 months in relation to the count of receiving tainted property.

The court also noted that the defendant had been convicted on two further drug offences, but that no further action would be taken in relation to those offences. The court therefore made orders for the defendant to be released on probation for 12 months, with convictions recorded in relation to counts 3 and 4. The court also made orders for the defendant to be subject to a number of conditions, including that she attend counselling and rehabilitation programs, and that she refrain from using or possessing drugs.

Orders

Orders of the court

Sentences

Count 1: Four years imprisonment wholly suspended from 25 February 2021 with an operational period of five years.

Count 2: Convicted with no further action taken.

Count 3: Convicted with no further action taken.

Count 4: Defendant released on probation for 12 months, convictions recorded.

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 UQD [2021] QSC 50
PARTIES:	R v UQD
FILE NO/S:	BS No 819 of 2020
DIVISION:	Trial Division
PROCEEDING:	Sentence
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	Pleas of guilty entered on 18 February 2021. Sentences imposed on 25 February 2021 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2021
JUDGE:	Davis J
ORDER:	Sentences Count 1: Four years imprisonment wholly suspended from 25 February 2021 with an operational period of five years. Count 2: Convicted with no further action taken. Count 3: Convicted with no further action taken. Count 4: Defendant released on probation for 12 months, convictions recorded.
CATCHWORDS:	CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER MATTERS - where the defendant pleaded guilty on indictment to one count of trafficking in the dangerous drugs methylamphetamine and cannabis, one count of receiving tainted property and two further counts relating to drug offences - where the trafficking occurred over a period of approximately 6 months - where the defendant had a customer base of at least 14 people - where the defendant was a user of drugs during the course of the trafficking period - where the defendant took significant steps towards rehabilitation after her offending was discovered by police - where the offending occurred in the context of the defendant experiencing significant domestic violence perpetrated by her former husband - where the domestic violence suffered by the defendant and the steps taken by the defendant towards rehabilitation were significant factors taken into account in the exercise of the sentencing discretion to impose a sentence not requiring the defendant to serve actual time in custody immediately - where the defendant was sentenced to a term of imprisonment of four years wholly suspended with an operational period of 5 years in relation to the count of trafficking in dangerous drugs - where the defendant was sentenced to a probation order of 12 months in relation to the count of receiving tainted property Criminal Code, s 2, s 398, s 433 Domestic and Family Violence Protection Act 2012 s 159 Drugs Misuse Act 1986, s 4, s 5, s 9, s 10 Penalties and Sentences Act 1992, s 9, s 13, s 90, s 95, s 96, s 144 R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8, considered R v Casagrande [2009] QCA 1, cited R v Engellenner [2012] QCA 6, cited R v Hood [2005] 2 Qd R 54, applied R v Ritzau [2017] QCA 17, considered R v SBK [2009] QCA 107, cited R v Stamatov [2017] QCA 158, followed R v Wallace [2015] QCA 62, followed York v R (2005) 225 CLR 466, cited
COUNSEL:	E O’Hanlon-Rose for the Crown S Lewis for the Accused
SOLICITORS:	Director of Public Prosecutions for the Crown Stewart Burr and Mayr for the Accused