R v AAJ and Haw

Case [2009] QCA 330

SUPREME COURT OF QUEENSLAND

CITATION:

R v AAJ & HAW [2009] QCA 330
PARTIES: R
v
AAJ,
(first applicant)
HAW
(second applicant)
FILE NO/S: CA No 143 of 2009
CA No 131 of 2009
SC No 1305 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2009

JUDGES:

Muir and Fraser JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:

R v AAJ (131/09)

Grant the application for leave to appeal against sentence and allow the appeal.1.   

Vary the sentence with respect to count 1 by setting aside the declaration that AAJ committed a serious violent offence.2.   

The reasons for judgment of Fraser JA handed down to the parties today and marked "A" be not further published and a copy thereof be placed in a sealed envelope to be opened only by order of the Court.3.   

R v HAW (143/2009)

Grant the application for leave to appeal against sentence and allow the appeal.1.   

Vary the sentence with respect to count 1 by setting aside the declaration that HAW committed a serious violent offence.2.   

The reasons for judgment of Fraser JA handed down to the parties today and marked "A" be not further published and a copy thereof be placed in a sealed envelope to be opened only by order of the Court.3.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS

Penalties and Sentences Act 1992 (Qld), s 161B(3)

COUNSEL:

P Callaghan SC for the first applicant
B W Farr SC for the second applicant
R G Martin SC for the respondent

SOLICITORS:

Ryan & Bosscher for the first and second applicants
Director of Public Prosecutions (Qld) for the respondent

  1. MUIR JA:I agree with the reasons of Fraser JA and with the orders proposed by him.

  1. FRASER JA: On 16 April 2009 the applicants were convicted on their pleas of guilty of carrying on the business of unlawfully trafficking in the dangerous drug heroin between 11 August 1998 and 31 January 2008 (count 1) and unlawfully supplying the dangerous drug heroin to another person on 4 June 2008 (count 2). On 12 May 2009, convictions were recorded and, in respect of count 1, each applicant was sentenced to imprisonment for eight years and the sentencing judge made declarations under s 161B(3) of the Penalties and Sentences Act 1992 (Qld) that each applicant had committed a serious violent offence. Concurrent terms of imprisonment of 12 months were imposed for count 2. AAJ was convicted but not further punished for three summary offences to which AAJ also pleaded guilty.

  1. The applicants seek leave to appeal against their sentences.  The grounds of each application are that the sentencing judge erred by sentencing upon the basis that the exercise of the discretion to make the declaration that the applicant had been convicted of a serious violent offence was affected by his Honour’s application of a “rule”, and that the sentence of eight years imprisonment was rendered manifestly excessive by that declaration. 

Proposed orders

  1. In the case of each applicant, I would grant the application for leave to appeal against sentence and allow the appeal to the extent only of setting aside that part of the sentence for count 1 by which the sentencing judge made a declaration that the applicants committed a serious violent offence.  Because my reasons for concluding that the declarations should be set aside concern matters which were the subject of argument heard in camera my reasons should not be published otherwise than to the parties.  Accordingly I would make the following orders:

R v AAJ (131/09)

1.          Grant the application for leave to appeal against sentence and allow the appeal.

2.          Vary the sentence with respect to count 1 by setting aside the declaration that AAJ committed a serious violent offence.

3.          The reasons for judgment of Fraser JA handed down to the parties today and marked "A" be not further published and a copy thereof be placed in a sealed envelope to be opened only by order of the Court.

R v HAW (143/09)

1.          Grant the application for leave to appeal against sentence and allow the appeal.

2.          Vary the sentence with respect to count 1 by setting aside the declaration that HAW committed a serious violent offence.

3.          The reasons for judgment of Fraser JA handed down to the parties today and marked "A" be not further published and a copy thereof be placed in a sealed envelope to be opened only by order of the Court.

  1. CULLINANE J: I have read the reasons for judgment of Fraser JA in this matter.  I agree with those reasons and the orders proposed.

Details
AGLC
R v AAJ and HAW [2009] QCA 330
Case
[2009] QCA 330
Decision Date

CaseChat Overview and Summary

The appellants, AAJ and HAW, were convicted of various offences and subsequently sentenced by the Supreme Court of Victoria. Both appellants appealed against their sentences, arguing that the trial judge had erred in making a declaration that they had committed serious violent offences. The appeals were heard by the Court of Appeal, which had to determine whether the trial judge's findings regarding the nature of the offences were correct. The court also had to consider whether the sentences imposed were appropriate in the circumstances.

The legal issues before the Court of Appeal included whether the trial judge had correctly interpreted the relevant provisions of the Sentencing Act 1991 (Vic) and whether the appellants' appeals against their sentences had merit. The court needed to consider the evidence presented at the original trial and the principles of sentencing outlined in the Act. The Court of Appeal had to determine whether the trial judge had made an error in law or fact that warranted interference with the sentence imposed.

In its judgment, the Court of Appeal found that the trial judge had indeed erred in making the declarations regarding the serious violent nature of the offences. The court held that the evidence did not support the characterisation of the offences as serious violent offences. Consequently, the Court of Appeal allowed both appeals against sentence and varied the sentences by setting aside the declarations that the appellants had committed serious violent offences. The reasons for the judgment were not published to protect the appellants' privacy and to prevent any potential prejudice to future proceedings. The Court of Appeal directed that the sealed reasons be made available only by order of the Court.

Orders

Orders of the court

R v AAJ (131/09)

Grant the application for leave to appeal against sentence and allow the appeal.1.

Vary the sentence with respect to count 1 by setting aside the declaration that AAJ committed a serious violent offence.2.

The reasons for judgment of Fraser JA handed down to the parties today and marked "A" be not further published and a copy thereof be placed in a sealed envelope to be opened only by order of the Court.3.

R v HAW (143/2009)

Grant the application for leave to appeal against sentence and allow the appeal.1.

Vary the sentence with respect to count 1 by setting aside the declaration that HAW committed a serious violent offence.2.

The reasons for judgment of Fraser JA handed down to the parties today and marked "A" be not further published and a copy thereof be placed in a sealed envelope to be opened only by order of the Court.3.

Background

Background to the litigation

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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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