The Queen v Malone, Narelle Kathleen - [2021] QCA 76

[2021] QCA 76

COURT OF APPEAL

SOFRONOFF P
McMURDO JA
BODDICE J

CA No 90 of 2020
SC No 108 of 2019

THE QUEEN

MALONE, Narelle Kathleen Applicant

BRISBANE

FRIDAY, 16 APRIL 2021

JUDGMENT

McMURDO JA: The applicant was convicted on her plea of guilty of an offence of trafficking in methylamphetamine over a period of 15 months. She was sentenced to a term of 12 years imprisonment. At that time, she had served some 617 days in custody which was declared as time served. There was the necessary declaration that she had been convicted of a serious violent offence. By this offence, she had breached a suspended sentence of four months, which was then ordered to be served concurrently with the 12 year term.

She applies for leave to appeal against her sentence on the ground that it is manifestly excessive. By her counsel’s submissions, it is a contended that a sentence of nine and a half years with no declaration of a serious violent offence and no parole eligibility date being set would be appropriate, although the argument concedes that a higher sentence than that was open.

The applicant was aged 44 and 45 years in the period of her offending, and she was 47 when sentenced. She had a lengthy criminal history for drug offences and offences of dishonesty. On reading her criminal history, the sentencing judge remarked that the applicant was a recidivist thief and drug offender.

The trafficking involved large quantities of methylamphetamine in which her trafficking was sometimes in street level amounts, but more significantly, in large amounts at a wholesale level. At the commencement of the trafficking period, her premises were searched by police, and that search located $70,200 concealed in a wall cavity, and many thousands of dollars in other places in the premises, amounting to a total of over $80,000 in cash. There were clip seal bags, a Cryovac machine, an electric money counter, digital scales with methylamphetamine on them, and a quantity of about 25 grams of the drug. She lived there with her then partner, and each of them was then dealt with for possession offences.

On 23 February 2018, there was another search of her premises. Police then found $18,000 in cash, which she claimed she had won on poker machines. They found $1,600 in her wallet.

On the 1st of May 2018, she bought a car, paying cash of $38,000. There was no attempt to suggest that this money came from something other than her trafficking business.

Her premises were searched again on 21 June 2018. Police then found $35,150 in cash hidden in books, and thousands of dollars in her safe and in her wallet. Another person present, Tracey James, claimed possession of the drugs that were then found at the premises. After Ms James was charged, surveillance recordings detected the applicant telling someone that James falsely claimed to own the drugs and that the applicant would pay her fine.

In the last month or…

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.

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Details

Case: [2021] QCA 76
Decision Date: 16 APRIL 2021

CaseChat Overview and Summary

Narelle Kathleen Malone was convicted of trafficking methylamphetamine over a 15-month period and was sentenced to 12 years in prison. The applicant's conviction and sentence were subject to appeal, with the applicant contending that the sentence was manifestly excessive. Malone argued that a sentence of nine and a half years, without the declaration of a serious violent offence or a set parole eligibility date, would have been appropriate. The applicant, aged 44 and 45 during the period of her offending, had a lengthy criminal history for drug offences and dishonesty. The trafficking involved large quantities of methylamphetamine, with significant amounts of cash found in her possession during police searches. The Court of Appeal examined the sentencing range and considered comparable cases to determine if the sentence was excessive. The Court found that while the sentence was heavy, it was not so high as to indicate an error on the part of the sentencing judge. The Court of Appeal refused the application for leave to appeal against the sentence.

Orders