Whyte v State of Queensland - [2008] QDC 256

[2008] QDC 256

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE BRADLEY

Appeal No 4 of 2008

JUDITH HELEN WHYTE	Appellant
and
STATE OF QUEENSLAND	Respondent

TOOWOOMBA

..DATE 22/10/2008

JUDGMENT

HER HONOUR: On the 26th of February 2008, the appellant pleaded guilty to the following three offences: firstly, that on the 17th of October 2007 at Toowoomba, she unlawfully had possession of a dangerous drug, namely methylamphetamines; secondly, that between the 1st of July 2007 and the 17th of October 2007, she, being the occupier of a place, namely 10 Blake Street, Toowoomba, did permit such place to be used for the commission of a crime defined in part 2 of the Drugs Misuse Act, namely possession of a dangerous drug; and thirdly, that on the 17th of October 2007, she unlawfully had in her possession things, namely two pipes, for use in connection with the smoking of a dangerous drug.

By pleading guilty to these three offences, the appellant was in breach of a two-year probation order which was imposed on her on the 20th of June 2007 for two drug-related offences committed on the 16th of May 2007. One was for possession of a small amount of cannabis and the other for possession of a water pipe. The two-year probation order was also the penalty imposed when an 18-month probation order which had been imposed on the 2nd of April 2007 was revoked and the appellant was resentenced for the original offences relating to that. Those original offences were, one, that on the 6th of March 2007 she had possession of a dangerous drug, namely cannabis sativa, another that on the 6th of March 2007 she had possession of a dangerous drug, namely methylamphetamine and a third that on the 6th of March 2007 she had possession of a glass pipe and three water pipes that she'd used in connection with the smoking of a dangerous drug.
For each of the three most recent offences and for the original offences for which the appellant was placed originally on probation, the Magistrate imposed sentences of four months' imprisonment, to be served concurrently. The Magistrate fixed a parole release date of the 25th of June 2008 and thereby effectively ordered that the appellant serve the whole of the term of imprisonment without any parole.

The appellant argues that although the head sentence of four months' imprisonment is within range, given the appellant's criminal history, the sentence is nevertheless manifestly excessive and the Magistrate should have ordered her immediate release on parole or, alternatively, should have suspended the term of imprisonment.

The facts of the most recent offences were placed before the sentencing Magistrate by the prosecuting police sergeant, and I will read those facts into the record from the transcript: "On the 17th of October 2007, 3.15 p.m., police executed a search warrant at 10 Blake Street, Toowoomba. Nobody was home at the time. Police went into the dwelling via an open side window, conducted the search. Located in the main bedroom, six…

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: [2008] QDC 256
Decision Date: 22 October 2008

CaseChat Overview and Summary

The case of Whyte v State of Queensland involved an appeal by Judith Helen Whyte against her sentence imposed by the Magistrates Court. Whyte had pleaded guilty to three drug-related offences, including possession of a dangerous drug, permitting her place to be used for drug-related crime, and possession of items for use in smoking a dangerous drug. These offences breached a two-year probation order that was imposed on Whyte for earlier drug-related offences. The Magistrate sentenced Whyte to four months' imprisonment for each offence, to be served concurrently, with a parole release date set for the last day of the term. Whyte argued that the sentence was manifestly excessive given her criminal history and personal circumstances.

The primary legal issue before the court was whether the Magistrate's sentencing order, particularly the parole release date, was appropriate given the appellant's guilty pleas and personal circumstances. The court noted that the Magistrate did not adequately consider the appellant's pleas of guilty and personal circumstances, such as her young children and health issues, when imposing the sentence. The court also highlighted that the offences involved relatively minor amounts of drugs and that the appellant had cooperated with the police.

The District Court found that the Magistrate's sentencing remarks did not adequately explain the process of reasoning underlying the imposition of the parole release date. The court concluded that the appellant should be given full credit for her pleas of guilty and that the sentence should include a provision for immediate release on parole or release after a short period. The court set aside the original parole release date and fixed a new parole release date at the 22nd of October 2008, meaning the appellant would be on parole for approximately two months. The court also made a declaration of time served and ordered the appellant to report to the Probation and Parole Office.

Orders