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R v Barton[2006] QCA 367
R v Barton[2006] QCA 367
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | |
DELIVERED ON: | 22 September 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 August 2006 |
JUDGES: | McMurdo P, Jerrard JA and Mullins J |
ORDER: | 1.Application for leave to appeal against sentence granted 2.Appeal allowed to the limited extent of recommending that the applicant be eligible for parole after serving 18 months imprisonment instead of two years and three months |
CATCHWORDS: | CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where applicant pleaded guilty to trafficking and supplying a dangerous drug and possessing things used in connection with producing dangerous drugs - where applicant's effective total sentence was seven years imprisonment with eligibility for parole after two years and three months - where applicant was previously drug-addicted but reports and references indicate that her efforts at rehabilitation have been successful - whether recommendation for parole eligibility after two years and three months adequately reflected many of the significant mitigating features of this case - whether the sentence was manifestly excessive in all the circumstances CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - GENERAL PRINCIPLES - where this Court was asked to consider new evidence in the form of a psychiatric report attesting to the extent of the applicant's drug addiction - whether this report should be admitted on appeal to avoid a miscarriage of justice R v Maniadis [1997] 1 Qd R 593, applied |
COUNSEL: | A J Glynn SC for applicant/appellant |
SOLICITORS: | Robertson O'Gorman for applicant/appellant |
[1] McMURDO P: The applicant, Kellie Marie Barton, pleaded guilty in the Supreme Court at Brisbane on 6 January 2006 to an indictment containing one count of trafficking in methylamphetamine (count 1), seven counts of supplying methylamphetamine (counts 2 to 8) and one count of possession of pseudoephedrine for use in connection with the commission of the crime of producing dangerous drugs (count 9). She also pleaded guilty to three summary offences. She was sentenced to seven years imprisonment for the trafficking (count 1) and to no further punishment for the counts of supply (counts 2 - 8), which were particulars of the offence of trafficking. She was sentenced to a concurrent term of 12 months imprisonment for the possession charge (count 9) and to concurrent terms of six months imprisonment for each of the summary offences. The judge recommended that she be eligible for parole after two years and three months.
[2] She was 24 at the time of the offences, 26 at sentence and had a short criminal history: in 2000 she was fined for possession of utensils and failure to dispose of a needle and syringe and in 2001 she breached a fine option order.
[3] All the offences occurred during the period of the trafficking between 4 July and 22 September 2004. During that time the applicant sold methylamphetamine to an undercover police officer on the seven occasions each charged individually in counts 2 to 8. She sold her white powder weighing 118.473 gms and containing 26.608 gms of pure methylamphetamine with an average purity of 22 per cent for $14,700. On 21 September 2004 police executed a search warrant at her home and found amongst other things a plastic bag with eight plastic trays, each containing 15 tablets of Sudafed.
[4] The summary offences occurred on 2 September 2004 when police found her in possession of pseudoephedrine tablets, a hypodermic syringe and needle and property suspected of being tainted (a video camera, DVD player, laptop computer, motorbike helmet, diving equipment and two mobile phones). She had been charged with the summary offences when she committed counts 8 and 9.
[5] At sentence the applicant's then counsel referred to her long-standing drug problem in these terms. She was first introduced to cannabis when she was 14 years old and to methylamphetamine when she was 16. Over time her addiction worsened. She had a five year relationship with Steven Woods who was the father of her child born on 9 May 2005. Counsel tendered references which supported his contention that the applicant had been drug addicted but that since the birth of her child she had made successful efforts to rehabilitate. The applicant's mother provided a letter in which she stated that the applicant came from a loving family and had a good employment record with the Logan City Council for five years but slipped downhill when she became involved with the wrong crowd and drugs; since she became pregnant she had changed for the better and was now a wonderful mother who truly regretted her previous actions. Another reference from Miss Snelius, who had known the applicant since they were primary school students together, was in these terms:
"In this time I have watched Kellie be introduced to drugs and crime by a previous boyfriend of hers. I witnessed Kellie become addicted to drugs and also witnessed Kellie being emotionally and physically abused by this person. I believe this began a downward spiral for Kellie and these circumstances paved the way for the time in jail she is now facing.
Since Kellie became pregnant last year I watched intently to see if she was going to change and it is in sincerity that I say that she has indeed changed.
Since having her child ..., I have watched Kellie become a responsible adult once again. Her home is always clean; [the child] is always looked after and is loved so much. Kellie seems so unlike the person I had grown accustomed to previously.
Kellie has acknowledged her past and her wrongdoings and is facing up to the crimes that she has committed."
[6] Her counsel also tendered pathology reports which demonstrated that on 17 November 2004 and on 16, 23 and 29 September 2005 and 1, 9 and 30 November 2005 she provided urine samples which when analysed were drug free.
[7] In his sentencing remarks the learned primary judge addressed the applicant and listed the factors which he considered mitigated the seriousness of her conduct:
"You were only 24 years of age at the time of your offences, and I am told you were addicted to methylamphetamine ... The evidence of how far you were addicted is thin. There is some reference to it in the references which have been provided by you and I have been told that you were addicted from the Bar table.
I am prepared to sentence you on the basis that you were an addict and that your conduct was in part motivated by a craving to finance your habit. I am not prepared to infer that you were trafficking in the amphetamine solely for that reason. I was invited to infer that you were not motivated by a desire for profit. I reject that approach."
[8] Later his Honour referred to the references tendered on the applicant's behalf, noting:
"The dominating theme among them is what a reformed person you are since the birth of your child in May last year. It is a great pity that you were not able to reform yourself and to rehabilitate yourself from your addiction before that event. The result of your conduct will be to deprive your child of your presence at a critical time in its life, and that is something that is simply down to what you did.
I accept that you have not displayed indicia of great wealth as a result of what you have done. But at the end of the sentencing process, I have to take into account the seriousness of what you were doing; you were trafficking in methylamphetamine. That is a drug which ruins people's lives. From your own experience as an addict you must know the insidious way it affects people. It not only ruins people's lives but it is the source of much crime in the community, crime related to offences of violence as well as offences of dishonesty. That is why the Parliament has provided such heavy penalties for trafficking in it. I must impose a sentence which will deter you from future conduct, but equally as importantly, will deter others from this sort of conduct. You cannot look after yourself at the expense of ruining the lives of other people."