R v Whithouse - [1998] QCA 148

COURT OF APPEAL

[1998] QCA 148

DAVIES JA
McPHERSON JA

SHEPHERDSON J

CA No 472 of 1997
THE QUEEN
v.

MICHELLE LOUISE WHITEHOUSE

BRISBANE
..DATE 26/03/98
260398 T5/TW12 M/T COA61/98
DAVIES JA: The applicant pleaded guilty in the Supreme Court
at Townsville on 21 November last to a count of unlawfully
trafficking in a dangerous drug namely methylamphetamine. She
had been indicted on other offences as well, had pleaded not
guilty to all of them and her trial was about to proceed when,
after a short adjournment, she pleaded guilty to this offence
which the Crown accepted in satisfaction of the indictment.
A few days later she was sentenced to five years imprisonment
with a recommendation for eligibility for parole after serving
21 months of that term.

The applicant is 37 years of age having been born on 5 January 1961. She has a substantial history of drug offences commencing in 1990, although none of them as serious as this one. The most serious of them appears to have been supply and production of a dangerous drug, presumably in each case marijuana for in respect of none of the offences in which she has previously been convicted has she been sent to prison. Generally she has been fined, in some cases converting those fines into community service. At the time of commission of these offences the applicant was herself addicted to methylamphetamines.

It appears that the police targeted a number of people in relation to production and sale of methylamphetamines. One of them was the applicant. In the course of their investigation they went to the applicant's house with a search warrant on 3 September 1996. There they found 6.652 grams of methylamphetamine of a purity varying between 68.2 per cent and 79 per cent. The learned sentencing Judge was told that the percentage of methylamphetamine normally found in quantities 260398 T5/TW12 M/T COA61/98

sold on the street varies from one to five per cent. During the course of a police interview the applicant admitted to trafficking in methylamphetamine. She said that she would buy eight grams at a time for $1,500 and would sell it in small amounts for $100 or $50 for a total sale price of $2,400. That indicates a substantial profit for each sale. She was initially buying from a friend but later bought directly from the manufacturer. She declined to identify either. The friend, as it turned out, was a woman called Robyn Comollatti who had pleaded guilty earlier and who was prepared to, and about to give, evidence for the Crown at the applicant's trial. The manufacturer, it seems, had also been identified by Comollatti and his trial was still pending at the date of the present sentence. Comollatti had indicated her willingness to give evidence against him also.

It may be accepted that the applicant was engaged in the business of trafficking in methylamphetamine mainly to satisfy her own habit. Nevertheless as I have said she made a substantial profit from it.

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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 Whithouse

Details

AGLC: R v Whithouse [1998] QCA 148
Case: [1998] QCA 148
Decision Date: 26/03/1998

CaseChat Overview and Summary

The Court of Appeal considered an appeal against sentence by Michelle Louise Whitehouse, who had pleaded guilty to trafficking in methylamphetamine and was sentenced to five years imprisonment with a recommendation for parole after 21 months. Whitehouse had a history of drug offences and was addicted to methylamphetamines at the time of the offence. The appeal was against the severity of the sentence imposed. The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge had properly considered the factors in mitigation and aggravation. The court examined previous cases involving similar offences and concluded that the sentence was not manifestly excessive, given the seriousness of the offence and the need for deterrence. The court also noted the difference in the offenders' willingness to cooperate with authorities, which influenced the sentencing. The appeal was dismissed, and the original sentence was upheld.

Orders