R v York; ex parte - [2004] QCA 361

SUPREME COURT OF QUEENSLAND

CITATION:

R v York; ex parte A-G [2004] QCA 361

PARTIES:

R
v
YORK, Gloria Jeanette
(respondent)  EX PARTE ATTORNEY-GENERAL OF QUEENSLAND  (appellant)

FILE NO/S:

CA No 210 of 2004

SC No 102 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2004; 22 September 2004

JUDGES:

Williams JA, White and Cullinane JJ  Joint reasons for judgment of Williams JA and Cullinane J; separate reasons of White J, dissenting

ORDERS:

1.   Appeal allowed

2.   Set aside the sentence imposed at first instance, and in lieu thereof sentence the respondent to five years imprisonment to be suspended after serving two years with an operational period of five years

3.   Order that the order of the sentencing judge made pursuant to s 122 of the Drugs Misuse Act 1986 not apply to the publication of the reasons for judgment of this court

4.   A warrant is to issue for the respondent’s arrest, to lie in the registry for seven days

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATION TO INCREASE SENTENCE – OTHER OFFENCES – respondent pleaded guilty to a charge that she unlawfully carried on the business of trafficking dangerous drugs and pleaded guilty to a number of counts of possessing dangerous drugs – where the respondent gave extensive and prolonged co-operation with prosecuting authorities to secure a murder conviction – where evidence placed before the court indicating that the respondent’s life would be at real risk if she was sent to prison – where the respondent was sentenced to five years imprisonment wholly suspended because of that risk – whether it was appropriate to suspend the sentence wholly

Corrective Services Act 2000 (Qld), s 38
Drugs Misuse Act 1986 (Qld), s 122
Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 13A
Supreme Court of Queensland Act 1991 (Qld), s 128(2)

R v Kim Christensen [2002] QCA 113; CA No 313 of 2001, 22 March 2002, cited
R v Gladkowski (2000) 115 A Crim R 446, considered
R v Ianculescu [2000] 2 Qd R 521, cited

R v Le; ex parte A-G [2000] QCA 392; CA No 103 of 2000, 29 September 2000, cited
R v Thompson (1994) 76 A Crim R 75, distinguished

COUNSEL:

M J Copley for the appellant

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

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant

Ryan & Bosscher for the respondent

AND CULLINANE J: WILLIAMS JA
This is an appeal by the Attorney-General against the sentence imposed on the respondent after she pleaded guilty to a charge that she carried on the business of unlawfully trafficking in the dangerous drugs heroin, methylamphetamine and cannabis between 1 November 1999 and 27 May 2000. She also pleaded guilty to a…

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 York; ex parte

Details

AGLC: R v York; ex parte [2004] QCA 361
Case: [2004] QCA 361
Decision Date: 8 October 2004

CaseChat Overview and Summary

In the case of R v York, the respondent was convicted of unlawfully carrying on the business of trafficking dangerous drugs and pleaded guilty to multiple counts of possessing dangerous drugs. The matter came before the court as the Attorney-General sought to appeal against the sentencing decision that imposed a wholly suspended five-year imprisonment sentence due to the respondent's substantial co-operation with authorities in securing a murder conviction and the risk to her life if imprisoned. The central issue for the court was to determine whether it was appropriate to wholly suspend the sentence imposed on the respondent.

The court considered the respondent's significant co-operation with law enforcement and the risk to her life if she were to be incarcerated. It was noted that the respondent's co-operation had been extensive and prolonged, and the risk to her life was substantial if she were to serve the sentence in prison. However, the court found that a wholly suspended sentence did not adequately reflect the seriousness of the offences committed. The court concluded that a partial suspension of the sentence, with an initial period of imprisonment followed by a suspended term, was more appropriate to balance the respondent's co-operation and the safety concerns.

The appeal was allowed, and the court set aside the original sentence, imposing a sentence of five years imprisonment, to be suspended after serving two years, with an operational period of five years. The court also ordered that the sentencing judge's order made under section 122 of the Drugs Misuse Act 1986 not apply to the publication of the reasons for judgment in this court. A warrant was issued for the respondent's arrest, to remain in the registry for seven days.

Orders

Orders of the court

1. Appeal allowed

2. Set aside the sentence imposed at first instance, and in lieu thereof sentence the respondent to five years imprisonment to be suspended after serving two years with an operational period of five years

3. Order that the order of the sentencing judge made pursuant to s 122 of the Drugs Misuse Act 1986 not apply to the publication of the reasons for judgment of this court

4. A warrant is to issue for the respondent’s arrest, to lie in the registry for seven days

Background

Background to the litigation

Full text does not contain this section.

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 York; ex parte A-G [2004] QCA 361
PARTIES:	R v YORK, Gloria Jeanette (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 210 of 2004 SC No 102 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2004; 22 September 2004
JUDGES:	Williams JA, White and Cullinane JJ Joint reasons for judgment of Williams JA and Cullinane J; separate reasons of White J, dissenting
ORDERS:	1. Appeal allowed 2. Set aside the sentence imposed at first instance, and in lieu thereof sentence the respondent to five years imprisonment to be suspended after serving two years with an operational period of five years 3. *Order that the order of the sentencing judge made pursuant to s 122 of the Drugs Misuse Act* 1986 not apply to the publication of the reasons for judgment of this court 4. A warrant is to issue for the respondent’s arrest, to lie in the registry for seven days**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL – APPLICATION TO INCREASE SENTENCE – OTHER OFFENCES – respondent pleaded guilty to a charge that she unlawfully carried on the business of trafficking dangerous drugs and pleaded guilty to a number of counts of possessing dangerous drugs – where the respondent gave extensive and prolonged co-operation with prosecuting authorities to secure a murder conviction – where evidence placed before the court indicating that the respondent’s life would be at real risk if she was sent to prison – where the respondent was sentenced to five years imprisonment wholly suspended because of that risk – whether it was appropriate to suspend the sentence wholly Corrective Services Act 2000 (Qld), s 38 Drugs Misuse Act 1986 (Qld), s 122 Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 13A Supreme Court of Queensland Act 1991 (Qld), s 128(2) R v Kim Christensen [2002] QCA 113; CA No 313 of 2001, 22 March 2002, cited R v Gladkowski (2000) 115 A Crim R 446, considered R v Ianculescu [2000] 2 Qd R 521, cited R v Le; ex parte A-G [2000] QCA 392; CA No 103 of 2000, 29 September 2000, cited R v Thompson (1994) 76 A Crim R 75, distinguished
COUNSEL:	M J Copley for the appellant B W Walker SC, with A J Kimmins, for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Ryan & Bosscher for the respondent