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The Queen v Marshall

The Queen v Marshall

Case [2013] QDC 127 7 June 2013

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DISTRICT COURT OF QUEENSLAND

CITATION:

The Queen v Marshall [2013] QDC 127

PARTIES:

THE QUEEN

v

JESSICA LORRAINE MARSHALL
(appellant)

FILE NO:

D14/2012

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Gladstone

DELIVERED ON:

7 June 2013

DELIVERED AT:

Gladstone

HEARING DATE:

31 May 2013

JUDGE:

Smith DCJ

ORDER:

1.   Appeal allowed.

2.   Sentences are varied so the appellant is released on parole immediately.

3.   Sentences otherwise confirmed.

4.   Appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Q).

5.   Appellant is required to report to Probation and Parole Office as required under the Act between 9am and 5pm today or on the next business day.

6.   If the appellant fails to do so, she will be unlawfully at large.

7.   Legal representatives have undertaken to inform the appellant of her obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q).

Pursuant to section 159A of the Penalties and Sentences Act 1992 (Q) it is declared that the Appellant has spent 4 days in pre-sentence custody. I declare this time to be imprisonment already served. The dates between which the Appellant was held in pre-sentence custody are 13 February 2012 and 17 February 2012. 8.

CATCHWORDS:

CRIMINAL LAW- Appeal against severity of sentence- Offences contrary to Drugs Misuse Act 1986 and Bail Act 1980- failure to refer to section 9(2)(a) and 13 of the Penalties and Sentences Act 1992 (Q)- failure to take into account pre-sentence custody

Bail Act 1980 (Q) s 29

Drugs Misuse Act 1986 (Q) ss. 9, 10

Justices Act 1886 (Q) ss 222, 223, 225.

AB v R (1999) 198 CLR 111

Allesch v Maunz (2000) 203 CLR 172

R v Anable [2005] QCA 208

R v Armstrong [2005] QCA 116

R v Chinmaya [2009] QCA 227

R v Clemments [2010] QCA 38

R v Dance [2009] QCA 371

R v Kitson [2008] QCA 86

R v Liddle [2006] QCA 45

R v Mallon [1997] QCA 58

R v Sartori [2006] QCA 284

R v Woods [2004] QCA 204

COUNSEL:

Mr. D. Murray for the appellant

Ms. S. Hedge for the respondent

SOLICITORS:

Kenny and Partners for the appellant

Director of Public Prosecutions (Q) for the respondent

Introduction

This is an appeal against the severity of punishment imposed in the Gladstone Magistrates Court on 15 November 2012.

The appeal is pursuant to s 222 of the Justices Act 1886 (Q).

Section 222(2)(c) of the Justices Act provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive.

Section 223(1) of the Justices Act provides that the appeal is by way of rehearing on the evidence given in the proceeding before the justices. There is also provision for the admission of fresh, additional or substituted evidence in certain circumstances.

Section 225(1) of the Justices Act provides that “on the hearing of an appeal, the judge may confirm, set aside or vary the appealed order…

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 Marshall

Details

AGLC: The Queen v Marshall [2013] QDC 127
Case: [2013] QDC 127
Decision Date: 7 June 2013

CaseChat Overview and Summary

The appeal in The Queen v Marshall arose from the appellant's conviction for drug-related offences under the Drugs Misuse Act 1986 and subsequent sentencing under the Bail Act 1980. The appellant was convicted and sentenced to imprisonment for possession and trafficking of prohibited drugs, and the matter was heard in the Queensland Court of Appeal. The central issue was whether the primary judge had erred in imposing a sentence that did not adequately account for the time the appellant had already spent in pre-sentence custody, as required by section 9(2)(a) and 13 of the Penalties and Sentences Act 1992.

The court examined whether the primary judge had appropriately considered the pre-sentence custody period as per statutory requirements. It was argued that the failure to explicitly refer to the relevant sections of the Penalties and Sentences Act constituted a significant error. The court also reviewed the relevant case law, including AB v R, Allesch v Maunz, and various other Queensland cases, to determine the correct approach to sentencing and the impact of pre-sentence custody. The court held that the primary judge's failure to explicitly acknowledge the pre-sentence custody period was a material error, as it did not align with legislative mandates.

The appeal was allowed on the grounds that the primary judge had not properly accounted for the time spent in pre-sentence custody. Consequently, the court varied the sentence to ensure the appellant was released on parole immediately. The sentences were otherwise confirmed, and the court ordered the appellant's immediate release on parole under section 200(1) of the Corrective Services Act 2006. The appellant was also required to report to the Probation and Parole Office within specified hours. It was declared that the 4 days spent in pre-sentence custody would be considered as time already served.

Orders

Orders of the court

1. Appeal allowed.

2. Sentences are varied so the appellant is released on parole immediately.

3. Sentences otherwise confirmed.

4. Appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Q).

5. Appellant is required to report to Probation and Parole Office as required under the Act between 9am and 5pm today or on the next business day.

6. If the appellant fails to do so, she will be unlawfully at large.

7. Legal representatives have undertaken to inform the appellant of her obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q).

Pursuant to section 159A of the Penalties and Sentences Act 1992 (Q) it is declared that the Appellant has spent 4 days in pre-sentence custody. I declare this time to be imprisonment already served. The dates between which the Appellant was held in pre-sentence custody are 13 February 2012 and 17 February 2012. 8.

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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Citations

AGLC Citation

The Queen v Marshall [2013] QDC 127

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

R v Clemments
[2010] QCA 38 Para 1

…The Respondent relied on the decision in R v Clemments [2010] QCA 38. In that decision while the judge did not refer to s 9(2)(a) there was no basis in that case for thinking that the judge overlooked that principle.…
R v Dance
[2009] QCA 371 Para 2

…In R v Dance [2009] QCA 371 at [56] the Court of Appeal allowed an appeal on the basis that this section was not referred to at the sentence.…
R v Chinmaya
[2009] QCA 227 Para 1

…In R v Chinmaya [2009] QCA 227 the offender received 12 months with an immediate parole release date. 4.78 grams gross of the drug (.111 pure) was found in his room, together with 25 ecstasy tablets weighing 6.8 grams – 1.56 grams pure. Eighty-eight tablets of MDMA, namely 23.8 grams (6.027 grams pure), were foun…
Teelow v Commissioner of Police
[2009] QCA 84 Para 1

…In Teelow v Commissioner of Police [2009] QCA 84, Muir JA held at [4] referring to Allesch v Maunz (2000) 203 CLR 172 at 180-181: “It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of…
R v Kitson
[2008] QCA 86 Para 1

…In R v Kitson [2008] QCA 86 the offender was sentenced to 15 months’ imprisonment with release after six months. He possessed 22 bags of the drug weighing a total of 2.115 grams pure. The plea was in the week before the trial was due to commence, although a supply charge was dropped. He had previous drug convict…
R v Sartori
[2006] QCA 284 Para 1

…In R v Sartori [2006] QCA 284 the offender received 18 months, to serve five months. There was 10.67 grams of pure MDMA. There was an admission of sales by the offender. There was clearly a possession for a commercial purpose.…
R v Liddle
[2006] QCA 45

…208 R v Armstrong [2005] QCA 116 R v Chinmaya [2009] QCA 227 R v Clemments [2010] QCA 38 R v Dance [2009] QCA 371 R v Kitson [2008] QCA 86 R v Liddle [2006] QCA 45 R v Mallon [1997] QCA 58 R v Sartori [2006] QCA 284 R v Woods [2004] QCA 204 COUNSEL: Mr. D. Murray for the appellant Ms. S. Hedge for the respondent…
R v Anable
[2005] QCA 208 Para 1

…The Magistrate in his reasons referred to a number of decisions including R v Anable [2005] QCA 208, R v Armstrong [2005] QCA 116 and R v Woods [2004] QCA 204.…
R v Armstrong
[2005] QCA 116 Para 1

…The prosecution placed reliance on R v Armstrong [2005] QCA 116 indicated that a head sentence of 18 months’ imprisonment was sought and it was submitted that it was appropriate the defendant serve in the vicinity of four months actual imprisonment.…
R v Woods
[2004] QCA 204 Para 1

…The Magistrate in his reasons referred to a number of decisions including R v Anable [2005] QCA 208, R v Armstrong [2005] QCA 116 and R v Woods [2004] QCA 204.…
Allesch v Maunz
[2000] HCA 40 Para 1

…In Teelow v Commissioner of Police [2009] QCA 84, Muir JA held at [4] referring to Allesch v Maunz (2000) 203 CLR 172 at 180-181: “It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the…
AB v The Queen
[1999] HCA 46

…e to take into account pre-sentence custody Bail Act 1980 (Q) s 29 Drugs Misuse Act 1986 (Q) ss. 9, 10 Justices Act 1886 (Q) ss 222, 223, 225. AB v R (1999) 198 CLR 111 Allesch v Maunz (2000) 203 CLR 172 R v Anable [2005] QCA 208 R v Armstrong [2005] QCA 116 R v Chinmaya [2009] QCA 227 R v Clemments [2010] QCA 38 R v…
R v Mallon
[1997] QCA 58 Para 2

…In R v Mallon [1997] QCA 58 it was held that: “One result will be that the failure to comply with the statutory obligation will place the imposed sentence in jeopardy. It will cause the appeal court to examine it closely since it will not clearly appear that the court has in fact taken the plea into account.”…

Legislation cited in this decision · 5

Justices Act 1886 (Qld)
222, 223, 225 4 mentions (from Para 1)
Drugs Misuse Act 1986 (Qld)
10, 9 3 mentions (from Para 1)
Bail Act 1980 (Qld)
29 2 mentions (from Para 1)
Corrective Services Act 2006 (Qld)
1 mention
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 2)

CITATION:	The Queen v Marshall [2013] QDC 127
PARTIES:	THE QUEEN v JESSICA LORRAINE MARSHALL (appellant)
FILE NO:	D14/2012
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Gladstone
DELIVERED ON:	7 June 2013
DELIVERED AT:	Gladstone
HEARING DATE:	31 May 2013
JUDGE:	Smith DCJ
ORDER:	1. Appeal allowed. 2. Sentences are varied so the appellant is released on parole immediately. 3. Sentences otherwise confirmed. 4. *Appellant is released on parole pursuant to s 200(1) of the Corrective Services Act* 2006 (Q). 5. Appellant is required to report to Probation and Parole Office as required under the Act between 9am and 5pm today or on the next business day. 6. If the appellant fails to do so, she will be unlawfully at large. 7. Legal representatives have undertaken to inform the appellant of her obligations to report under s 160G(5) of the Penalties and Sentences Act 1992 (Q).** Pursuant to section 159A of the Penalties and Sentences Act 1992 (Q) it is declared that the Appellant has spent 4 days in pre-sentence custody. I declare this time to be imprisonment already served. The dates between which the Appellant was held in pre-sentence custody are 13 February 2012 and 17 February 2012. 8.
CATCHWORDS:	CRIMINAL LAW- Appeal against severity of sentence- Offences contrary to Drugs Misuse Act 1986 and Bail Act 1980- failure to refer to section 9(2)(a) and 13 of the Penalties and Sentences Act 1992 (Q)- failure to take into account pre-sentence custody Bail Act 1980 (Q) s 29 Drugs Misuse Act 1986 (Q) ss. 9, 10 Justices Act 1886 (Q) ss 222, 223, 225. AB v R (1999) 198 CLR 111 Allesch v Maunz (2000) 203 CLR 172 R v Anable [2005] QCA 208 R v Armstrong [2005] QCA 116 R v Chinmaya [2009] QCA 227 R v Clemments [2010] QCA 38 R v Dance [2009] QCA 371 R v Kitson [2008] QCA 86 R v Liddle [2006] QCA 45 R v Mallon [1997] QCA 58 R v Sartori [2006] QCA 284 R v Woods [2004] QCA 204
COUNSEL:	Mr. D. Murray for the appellant Ms. S. Hedge for the respondent
SOLICITORS:	Kenny and Partners for the appellant Director of Public Prosecutions (Q) for the respondent