R v Vella - [2019] QCA 88

[2019] QCA 88

COURT OF APPEAL

SOFRONOFF P
GOTTERSON JA
BODDICE J

CA No 331 of 2018
SC No 1120 of 2018
SC No 1652 of 2018

THE QUEEN

VELLA, Jodie Applicant

BRISBANE

FRIDAY, 17 MAY 2019

JUDGMENT

SOFRONOFF P: Justice Boddice will give his reasons first in this matter.

BODDICE J: The applicant seeks leave to appeal an effective head sentence of four years imprisonment, with parole eligibility after serving a little under 16 months of actual custody, imposed on 13 November 2018. The sole ground of appeal, should leave be given, is that the sentence imposed was manifestly excessive.

On 13 November 2018, the applicant pleaded guilty to two counts of possessing a dangerous drug in excess of two grams, two counts of possessing a dangerous drug, one count of possessing dangerous drugs, two counts of unlawful possession of a weapon and one count of possessing things for use in connection with possessing dangerous drugs, all on indictment 1120 of 2018, and 11 summary charges, being two of possessing utensils or pipes for use, two of possessing property suspected of having been used in connection with the commission of a drug offence, one of contravening a direction or requirement of police, one of possessing tainted property, one of unlawful possession of weapons category A, B or M, three of receiving tainted property and one of driving a motor vehicle whilst having a relevant drug present in the blood or saliva.

In respect of each count of possessing a dangerous drug in excess of two grams, the applicant was sentenced to four years imprisonment. The applicant was sentenced to lesser concurrent periods of imprisonment for the remaining counts on the indictment, other than the count of possessing things for use in connection with possessing dangerous drugs. In respect of that count and each of the summary charges, the applicant was convicted but not further punished.

After allowing for 170 days in pre-sentence custody, which was declared as time served, the sentencing judge fixed the applicant’s parole eligibility date at 13 September 2019. Accordingly, the applicant was required to serve just under one third of the four-year head sentence in actual custody before being eligible for parole.

The offending related to offences committed on three separate occasions in 2017. At the time of the commission of all offences, the applicant was subject to probation orders imposed earlier in 2017 for drug and other offences. The last two occasions of offending also occurred in circumstances where the applicant was subject to bail orders for the earlier offences.

The first occasion of offending was on 22 May 2017. Police intercepted a motor vehicle containing the applicant. A search of her handbag revealed three clipseal bags containing a substance weighing 5.07 grams, of which 2.605 grams was pure methylamphetamine. That was count 1 on the indictment. Police also found cash and, in a sunglasses case, two further clipseal bags containing nine grams of seed and 18 grams of cannabis plant material, count…

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 Vella

Details

AGLC: R v Vella [2019] QCA 88
Case: [2019] QCA 88
Decision Date: 17 MAY 2019

CaseChat Overview and Summary

The applicant, Jodie Vella, sought leave to appeal against the sentence imposed by the sentencing judge, which was an effective head sentence of four years imprisonment with parole eligibility after serving just under 16 months. The appeal was based on the contention that the sentence was manifestly excessive. Vella pleaded guilty to multiple charges, including possession of dangerous drugs and unlawful possession of a weapon, and the offences were committed while she was subject to probation orders and on bail. The sentencing judge took into account Vella's guilty pleas, cooperation with police, and steps towards rehabilitation, but also considered her significant criminal history and the aggravating features of her offending.

The central legal issue was whether the sentence imposed was manifestly excessive. The applicant argued that the mitigating factors, including her pleas of guilty and hope for rehabilitation, should have resulted in a lesser sentence. The court needed to determine whether the sentence was within the appropriate range considering the nature and circumstances of the offending, and whether the sentencing judge erred in principle or in the exercise of discretion.

The Court of Appeal held that the sentence was not manifestly excessive. The court found that the aggravating features of Vella's offending, including the possession of substantial quantities of methylamphetamine for commercial purposes and persistent reoffending while subject to probation and bail, justified the four-year head sentence. The court also noted that the period of actual custody required to be served, approximately one-third of the head sentence, was within the appropriate range. The court rejected Vella's contentions that she did not understand the implications of a bulk arraignment or that her pleas of guilty should have resulted in an immediate parole order. The Court concluded that the sentencing judge did not err in principle or in the exercise of discretion, and dismissed the application for leave to appeal.

Orders