R v Yates - [2006] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v Yates [2006] QCA 101

PARTIES:

R
v
YATES, Sarah Jane
(applicant/appellant)

FILE NO/S:

CA No 46 of 2006
SC No 102 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2006

JUDGES:

Jerrard JA, Holmes and McMurdo JJ
Separate reasons for judgment of each member of the Court, Holmes and McMurdo JJ concurring as to the orders made; Jerrard JA concurring that the sentence should be reduced but dissenting as to the appropriate minimum term of imprisonment

ORDERS:

1.   Application for leave to appeal against sentence granted

2.   Appeal allowed

3.   The sentence below is set aside and in lieu thereof a sentence of four and a half years imprisonment to be suspended after the applicant has served nine months imprisonment, with an operational period of five years, is imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was sentenced for trafficking and possession –where the applicant’s co-accused relative had assisted police – where there was evidence of a risk of harm to the applicant’s co-accused in prison – where the applicant was at some risk of harm in prison – whether there was an error in the exercise of the sentencing discretion.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE – where the applicant was sentenced to imprisonment for trafficking and possession – where there was evidence of some risk of harm to the applicant in prison – where the applicant sought to adduce further evidence of risk to her safety subsequent to imprisonment – whether the fresh evidence was admissible.

The Queen v Attard, unreported, Helman J, Indictment No 465 of 2000, 29 January 2001, considered
R v Burge [2004] QCA 161; CA No 63 of 2004, 13 May 2004, considered
R v Clarke (1996) 90 A Crim R 1; [1996] QCA 474; CA No 393 of 1996, 29 November 1996, considered
R v Duggan [1996] QCA 218; CA Nos 441 of 1995 and 465 of 1991, 25 June 1996, considered
R v Grima [2000] QCA 105; CA No 429 of 1999, 30 March 2000, considered
R v Oldfield [2004] QCA 435; CA No 310 of 2004, 16 November 2004, considered
R v York; ex parte A-G (Qld) [2004] QCA 361, CA No 210 of 2004, 8 October 2004, cited
York v The Queen (2005) 221 ALR 541; (2005) 79 ALJR 1919; [2005] HCA 60; B79 of 2004, 6 October 2005, considered

COUNSEL:

B W Walker SC with A J Kimmins, for the applicant
M J Copley, for the respondent

SOLICITORS:

Ryan & Bosscher for the…

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 Yates

Details

AGLC: R v Yates [2006] QCA 101
Case: [2006] QCA 101
Decision Date: 7 April 2006

CaseChat Overview and Summary

The applicant in this case, Yates, was convicted of drug trafficking and possession and subsequently sentenced to imprisonment. Yates sought to appeal against the severity of her sentence, arguing that there had been an error in the exercise of the sentencing discretion by the original court. The applicant also sought to adduce fresh evidence relating to the risk of harm to her in prison, which was not available at the time of the original sentencing hearing.

The central legal issue before the court was whether there was an error in the exercise of the sentencing discretion by the original court. The applicant argued that the original sentence was excessive and that the court had not adequately considered the risk of harm to her in prison. The applicant also sought to introduce fresh evidence regarding the risk of harm she faced in prison, which was not available at the time of the original sentencing. The court was required to determine whether this fresh evidence was admissible and, if so, whether it warranted a reduction in the applicant's sentence.

The court found that there had indeed been an error in the exercise of the sentencing discretion by the original court. The court held that the original sentence was excessive and that the court had not adequately considered the risk of harm to the applicant in prison. The court also found that the fresh evidence presented by the applicant was admissible and that it warranted a reduction in the applicant's sentence. The court set aside the original sentence and imposed a new sentence of four and a half years imprisonment, to be suspended after the applicant had served nine months imprisonment, with an operational period of five years.

The court granted the application for leave to appeal against the sentence and allowed the appeal. The original sentence was set aside, and a new sentence was imposed as outlined above.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted

2. Appeal allowed

3. The sentence below is set aside and in lieu thereof a sentence of four and a half years imprisonment to be suspended after the applicant has served nine months imprisonment, with an operational period of five years, is imposed

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 Yates [2006] QCA 101
PARTIES:	R v YATES, Sarah Jane (applicant/appellant)
FILE NO/S:	CA No 46 of 2006 SC No 102 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2006
JUDGES:	Jerrard JA, Holmes and McMurdo JJ Separate reasons for judgment of each member of the Court, Holmes and McMurdo JJ concurring as to the orders made; Jerrard JA concurring that the sentence should be reduced but dissenting as to the appropriate minimum term of imprisonment
ORDERS:	1. Application for leave to appeal against sentence granted 2. Appeal allowed 3. The sentence below is set aside and in lieu thereof a sentence of four and a half years imprisonment to be suspended after the applicant has served nine months imprisonment, with an operational period of five years, is imposed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was sentenced for trafficking and possession –where the applicant’s co-accused relative had assisted police – where there was evidence of a risk of harm to the applicant’s co-accused in prison – where the applicant was at some risk of harm in prison – whether there was an error in the exercise of the sentencing discretion. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE – where the applicant was sentenced to imprisonment for trafficking and possession – where there was evidence of some risk of harm to the applicant in prison – where the applicant sought to adduce further evidence of risk to her safety subsequent to imprisonment – whether the fresh evidence was admissible. The Queen v Attard, unreported, Helman J, Indictment No 465 of 2000, 29 January 2001, considered R v Burge [2004] QCA 161; CA No 63 of 2004, 13 May 2004, considered R v Clarke (1996) 90 A Crim R 1; [1996] QCA 474; CA No 393 of 1996, 29 November 1996, considered R v Duggan [1996] QCA 218; CA Nos 441 of 1995 and 465 of 1991, 25 June 1996, considered R v Grima [2000] QCA 105; CA No 429 of 1999, 30 March 2000, considered R v Oldfield [2004] QCA 435; CA No 310 of 2004, 16 November 2004, considered R v York; ex parte A-G (Qld) [2004] QCA 361, CA No 210 of 2004, 8 October 2004, cited York v The Queen (2005) 221 ALR 541; (2005) 79 ALJR 1919; [2005] HCA 60; B79 of 2004, 6 October 2005, considered
COUNSEL:	B W Walker SC with A J Kimmins, for the applicant M J Copley, for the respondent
SOLICITORS:	Ryan & Bosscher for the…