R v Abdi

Case [2016] QCA 298 16 November 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Abdi [2016] QCA 298

PARTIES:

R
v
ABDI, Ahmed Ali
(applicant)

FILE NO/S:

CA No 146 of 2016
DC No 194 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 28 April 2016

DELIVERED ON:

16 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2016; 9 November 2016

JUDGES:

Fraser and Morrison and Philip McMurdo JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the order made in the District Court by, in lieu of the fixing of a parole release date, ordering that the applicant’s sentence of three years imprisonment be suspended as and from 26 October 2016 and that the applicant must not commit another offence punishable by imprisonment within a period of three years if the applicant is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty to one count of robbery in company with violence and sentenced to three years imprisonment with a parole date fixed after three months –where the applicant contends that the sentence is excessive for essentially a first time offender – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted on his own plea of guilty to one count of robbery in company with violence and sentenced to three years imprisonment with a parole date fixed after three months – where the applicant’s Australian visa was cancelled pursuant to the Migration Act 1958 (Cth) because of his conviction – where the applicant was placed into immigration detention upon his release on parole in preparation for deportation – where the fact of detention and deportation prevents the applicant from complying with parole conditions – where the sentencing judge was aware of the applicant’s nationality and the possibility of deportation but no submissions were made as to their effect on structuring the sentence – whether the sentencing judge erred in not considering the relevance of deportation to the efficacy of ordering a parole release date

Guden v R (2010) 28 VR 288; [2010] VSCA 196, cited
R v Casey [2003] QCA 152, considered
R v Maslen [1998] QCA 198, considered
R v Moss [1999] QCA 426, considered
R v Schelvis; R v Hildebrand [2016] QCA 294, cited
R v Shrestha (1991) 173 CLR 48; [1991] HCA 26, considered
R v Smith [2004] QCA 31, considered
R v UE[2016] QCA 58, considered

COUNSEL:

The applicant appeared on his own…

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 R v Abdi

Details

AGLC: R v Abdi [2016] QCA 298
Case: [2016] QCA 298
Decision Date: 16 November 2016

CaseChat Overview and Summary

The case of R v Abdi involved the appellant who was convicted of one count of robbery in company with violence. The appellant pleaded guilty and was sentenced to three years imprisonment with a parole date set after three months. The appellant subsequently appealed against the sentence, arguing that it was excessive and inadequately tailored to his personal circumstances. The appeal raised questions about the appropriateness of the sentence in light of the appellant’s status as a first-time offender and the impact of his impending deportation.

The court was required to determine whether the sentence was manifestly excessive or inadequate, and if the sentencing judge had erred by not considering the potential impact of the appellant's deportation on the conditions of parole. The appellant’s visa was cancelled under the Migration Act 1958 (Cth), and he was placed in immigration detention upon release on parole, preventing him from complying with parole conditions. The court needed to assess whether the sentencing judge failed to take into account the appellant’s nationality and the likely consequences of deportation when setting the parole release date.

In its reasoning, the court found that the sentence was indeed excessive given the appellant's first-time offender status and the unique personal circumstances, including the impending deportation. The court also concluded that the sentencing judge erred by not considering the relevance of the appellant's deportation in the context of the parole release date. Consequently, the court granted leave to appeal, allowed the appeal, and varied the original sentence. The court ordered that the appellant’s sentence be suspended from 26 October 2016, provided that he does not commit another offence punishable by imprisonment within three years. This order was made to avoid the appellant being dealt with under section 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the order made in the District Court by, in lieu of the fixing of a parole release date, ordering that the applicant’s sentence of three years imprisonment be suspended as and from 26 October 2016 and that the applicant must not commit another offence punishable by imprisonment within a period of three years if the applicant is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.

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

R v Abdi [2016] QCA 298

Most Recent Citation

R v Norris; Ex parte Attorney-General (Qld) [2018] QCA 27

Cases Citing This Decision

Kelly and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 327
Citation 1 (Para 42)

…hird, recognising your plea, so I think that is about another four months. I note the assistance provided by the Court of Appeal decision in Abdi [2016] QCA 298 in terms of the appropriateness, even where a person is being sentenced for drug offending and it otherwise would be logical for them to have supervision…
The Queen v Ruwhiu [2023] ACTCA 18
Citation 2

…Paterson v The Queen [2021] NSWCCA 273 Power v The Queen (1974) 131 CLR 623 R v Abdi [2016] QCA 298 R v Atai (No 2) [2021] ACTSC 272 R v Butters [2019] ACTSC 143 R v Chifuntwe (No 3) [2017] ACTSC 220 R v Coleman [2021] ACTSC 349 R v GBD [2018] QCA 340…
R v Nona [2022] QCA 26
Citation 3 (Para 15)

…sonment in consequence of being declared convicted of a serious violent offence.[26] [25] R v UE [2016] QCA 58; R v Schelvis [2016] QCA 294; R v Abdi [2016] QCA 298. [26] Penalties and Sentences Act Part 9A; R v Bojovic [2000] 2 Qd R 183; R v Eveleigh [2003] 1 Qd R 398; R v McDougall and Collas [2007] 2 Qd R 87.…
R v Volante [2021] QCA 109
Citation 4 (Para 26)

…se on parole is then a matter for the parole authorities. As was recognised in R v Shrestha (1991) 173 CLR 48, which was considered in R v Abdi [2016] QCA 298, the likelihood of deportation is relevant to the parole authority’s decision to release an offender on parole. Submissions on penalty made at first instan…
Reid v Commissioner of Police [2018] QDC 83
Citation 5 (Para 1)

…ial consideration[16] and I consider the sentencing discretion miscarried, resulting in an error of law. [16] R v Harrison [2015] QCA 210; R v Abdi [2016] QCA 298.…
R v Norris; Ex parte Attorney-General (Qld) [2018] QCA 27
Citation 6 (Para 21)

…consequences of the orders that may be made but is not concerned to pre-empt or avoid prospective exercise of separate executive power.” [34][2016] QCA 298. [35]AB36 l12. [36]AB36 l20 – AB 38 l9.…

See all citing cases →

Cases Cited

R v Schelvis [2016] QCA 294
Citation 1 (Para 4)

…h Wales and Western Australia a different view is taken, which is that the prospect of deportation is irrelevant.[9] [8] R v Schelvis; R v Hildebrand [2016] QCA 294. [9]See the cases cited in Schelvis by Fraser JA at [72]…
R v UE [2016] QCA 58
Citation 2 (Para 27)

…sponded simply that the applicant was not a resident of Australia and may or may not be “an actual resident of New Zealand”. [5][2016] QCA 58.…
Guden v The Queen [2010] VSCA 196
Citation 3 (Para 3)

…risk to be undertaken” as well as proof that deportation in that prisoner’s case “would in fact be a hardship”.[7] [6](2010) 28 VR 288; [2010] VSCA 196. [7](2010) 28 VR 288; 295 [29].…
R v Smith [2004] QCA 31
Citation 4 (Para 25)

…that the sentence was held to be not excessive, rather than indicating that a higher sentence could not have been imposed. [2][2003] QCA 152. [3][2004] QCA 31. [4][1998] QCA 198.…
R v Casey [2003] QCA 152
Citation 5 (Para 25)

…and the outcome was that the sentence was held to be not excessive, rather than indicating that a higher sentence could not have been imposed. [2][2003] QCA 152. [3][2004] QCA 31. [4][1998] QCA 198.…
R v Moss [1999] QCA 426
Citation 6 (Para 24)

…t applicant, who was aged only 18, had pleaded guilty to an ex‑officio indictment charging him with robbery of a shop when armed with a knife. [1][1999] QCA 426.…
R v Maslen [1998] QCA 198
Citation 7 (Para 25)

…was held to be not excessive, rather than indicating that a higher sentence could not have been imposed. [2][2003] QCA 152. [3][2004] QCA 31. [4][1998] QCA 198.…
R v Shrestha [1991] HCA 26
Citation 8 (Para 16)

…o were foreigners having no ties to Australia and whose sole purpose in entering Australia was to commit serious crimes.[17] [16](1991) 173 CLR 48; [1991] HCA 26. [17](1991) 173 CLR 48, 67.…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 160A(6)(c)
2 mentions (from Para 9)
Corrective Services Act 2006 (Qld)
1 mention (from Para 9)
Criminal Law Amendment Act 1945 (Qld)
1 mention (from Para 10)
Migration Act 1958 (Cth)
1 mention (from Para 5)

CITATION:	R v Abdi [2016] QCA 298
PARTIES:	R v ABDI, Ahmed Ali (applicant)
FILE NO/S:	CA No 146 of 2016 DC No 194 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 28 April 2016
DELIVERED ON:	16 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	13 September 2016; 9 November 2016
JUDGES:	Fraser and Morrison and Philip McMurdo JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. Vary the order made in the District Court by, in lieu of the fixing of a parole release date, ordering that the applicant’s sentence of three years imprisonment be suspended as and from 26 October 2016 and that the applicant must not commit another offence punishable by imprisonment within a period of three years if the applicant is to avoid being dealt with under s 146 of the *Penalties and Sentences Act* 1992 (Qld) for the suspended sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty to one count of robbery in company with violence and sentenced to three years imprisonment with a parole date fixed after three months –where the applicant contends that the sentence is excessive for essentially a first time offender – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was convicted on his own plea of guilty to one count of robbery in company with violence and sentenced to three years imprisonment with a parole date fixed after three months – where the applicant’s Australian visa was cancelled pursuant to the Migration Act 1958 (Cth) because of his conviction – where the applicant was placed into immigration detention upon his release on parole in preparation for deportation – where the fact of detention and deportation prevents the applicant from complying with parole conditions – where the sentencing judge was aware of the applicant’s nationality and the possibility of deportation but no submissions were made as to their effect on structuring the sentence – whether the sentencing judge erred in not considering the relevance of deportation to the efficacy of ordering a parole release date Guden v R (2010) 28 VR 288; [2010] VSCA 196, cited R v Casey [2003] QCA 152, considered R v Maslen [1998] QCA 198, considered R v Moss [1999] QCA 426, considered R v Schelvis; R v Hildebrand [2016] QCA 294, cited R v Shrestha (1991) 173 CLR 48; [1991] HCA 26, considered R v Smith [2004] QCA 31, considered R v UE[2016] QCA 58, considered
COUNSEL:	The applicant appeared on his own…