The Queen v Annaleise Mackiewicz - [2000] QCA 171

[2000] QCA 171

COURT OF APPEAL

McMURDO P
MACKENZIE J
DOUGLAS J

[R v MACKIEWICZ]

CA No 437 of 1999

THE QUEEN

ANNALEISE MACKIEWICZ Applicant

BRISBANE

..DATE 10/05/2000

JUDGMENT

THE PRESIDENT: On 16 August 1999 the applicant pleaded guilty in the Cairns Supreme Court to trafficking in a dangerous drug, namely, heroin between 19 February 1995 and 31 July 1995.

She was sentenced to nine years' imprisonment with a recommendation for parole after two years. A period of 48 days was declared to be served as a period of imprisonment. In the grounds of appeal she claims the sentence imposed was manifestly excessive and also that she had no legal representation.

The applicant who was self represented at sentence and on this appeal in her written outline withdraws that latter ground. Whilst that is sufficient to dispose of it, it should be noted the applicant had many legal representatives at various times including three different lawyers in the week leading up to her sentence. She had ample opportunity to organise her legal representation. The matter was a very old one. She represented herself at sentence creditably mentioning many mitigating factors and tendering references and reports favourable to her. There is nothing in this ground.

The applicant initially requested that this appeal be determined on the papers but the Registry organised a telephone hearing. The applicant has filed a well reasoned and detailed outline of argument which she says was prepared for her by a lawyer friend. She complains that at sentence the prosecutor overstated the proceeds of the sale of drugs received by parties to the trafficking and particularly as to the portion of the proceeds of sale received by her.

In the circumstances, she says, the sentence was manifestly excessive especially in not reflecting this matter, her lack of prior criminal history and in maintaining parity with co-offender Billy Ogden.

The applicant is a woman of mature years; 38 years old on the Crown material but she says she is now 42. She suffers from hepatitis B and C and was being treated at sentence by the Cairns District Health Service Liver Out-Patient Clinic. She had been undertaking a counselling and drug rehabilitation program with Addiction Help Agency Cairns Inc prior to sentence. A favourable report from a senior counsellor at Logan House Drug Rehabilitation was tendered noting that she was "very serious and committed to her recovery" and had only interrupted that course to attend Court in Cairns.

A further medical report from a GP noted that she has suffered from a major depressive episode for three years and has been prescribed antidepressants and also suffers from irritable bowel syndrome. She has prior convictions in 1993 for failing to dispose of a needle.

As this matter occurred in 1995 the remainder of her criminal history does not constitute prior convictions but has some relevance to her rehabilitation. In 1996 she was convicted of possession of a dangerous drug and possession of property suspected of being tainted.

In…

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 The Queen v Annaleise Mackiewicz

Details

AGLC: The Queen v Annaleise Mackiewicz [2000] QCA 171
Case: [2000] QCA 171
Decision Date: 10 May 2000

CaseChat Overview and Summary

The Queen brought an appeal against Annaleise Mackiewicz's sentence, who had pleaded guilty to trafficking in heroin between 19 February 1995 and 31 July 1995. Mackiewicz was sentenced to nine years' imprisonment with a recommendation for parole after two years, and she appealed claiming the sentence was manifestly excessive. The appeal was heard by McMurdo P, Mackenzie J, and Douglas J in the Queensland Court of Appeal.

The central legal issues in the appeal were whether the sentence imposed by the Cairns Supreme Court was manifestly excessive, and whether the applicant had been deprived of legal representation. The applicant initially argued she had no legal representation at the time of sentencing, but later withdrew this claim. The applicant's primary contention was that the sentence was manifestly excessive, as the prosecutor had overstated the proceeds of the sale of drugs, and the sentence did not account for her lack of prior criminal history or parity with co-offender Billy Ogden.

The court considered the sentencing remarks and found that the prosecutor's statements were not disputed by the applicant, and the figures referred to by the learned Judge were open to him. The court reviewed comparable sentences from previous cases and concluded that the sentence imposed on Mackiewicz was not manifestly excessive. The court found no error in the Judge's approach to fact-finding in the case.

The Queensland Court of Appeal refused the application for leave to appeal against sentence, with McMurdo P, Mackenzie J, and Douglas J concurring. The order was that the application for leave to appeal against sentence was refused.

Orders