SUPREME COURT OF QUEENSLAND
CITATION:
R v Ada [2022] QCA 114
PARTIES:
R
v
ADA, Onur
(applicant)FILE NOS:
CA No 20 of 2022
SC No 1326 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 15 September 2021 (Boddice J)
DELIVERED ON:
24 June 2022
DELIVERED AT:
Brisbane
HEARING DATE:
8 June 2022
JUDGES:
Mullins P and McMurdo and Bond JJA
ORDER:
Application for leave to appeal refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of trafficking in a dangerous drug, cocaine, and one count of possessing two mobile telephones used in connection with the commission of the trafficking offence – where the applicant was sentenced to six years’ imprisonment on the trafficking count and convicted but not further punished for the other count – where the applicant must serve 18 months in custody before being eligible for parole – whether there was any error of principle in the sentencing judge’s consideration of the delay between the charging and sentencing of the applicant
Criminal Code (Qld), s 564
R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, cited
COUNSEL:
M L Longhurst for the applicant
S J Dickson for the respondentSOLICITORS:
Roland McGrath Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 25 January 2021, Mr Ada pleaded guilty to one count of trafficking in a dangerous drug, cocaine, between 14 December 2016 and 3 November 2017 (a period of 10 months and 20 days) and one count of possessing two mobile telephones that he had used in connection with the commission of the crime of trafficking in a dangerous drug. Mr Ada was sentenced on the trafficking count to six years’ imprisonment. He was convicted but not further punished in respect of the possession count which was treated as a particular of the trafficking. One day of presentence custody was declared as time served under the sentence. His parole eligibility date was fixed at 14 March 2023 which would be after 18 months had been served in custody.
Mr Ada applies for leave to appeal on the ground that the sentencing judge erred in the consideration of the delay in sentencing, resulting in an excessive sentence warranting appellate intervention. Mr Ada’s counsel who appears on this application (and who is not the same counsel who appeared on his behalf at the sentencing) accepts that, but for the error of principle asserted in respect of the sentencing judge’s dealing with the issue of delay, the sentence could not be considered manifestly excessive.
The circumstances of the offending
The sentencing proceeded on an agreed statement of facts that was very detailed, as Mr Ada and his co-defendant Mr Duspara were the subjects of a police operation that used telecommunications and tactical intercepts, surveillance and search warrants…
Continue reading R v Ada
Sign in free to access the full text
- AGLC
- R v Ada [2022] QCA 114
- Case
- [2022] QCA 114
- Decision Date
CaseChat Overview and Summary
The court examined the submissions made by Mr Longhurst, counsel for Mr Ada, who argued that there were three aspects of delay which the sentencing judge should have considered: the impact on Mr Ada of the charges remaining unresolved, his rehabilitation, and the fairness of the global result considering the passage of time between being charged and sentenced. The court acknowledged that the sentencing judge had considered Mr Ada's rehabilitation and his personal circumstances, including the effect of delay, in fixing the parole eligibility date. The court found that the sentencing judge did not err in principle in rejecting the contention that the criminality of Mr Ada's offending could be appropriately recognised by a sentence as low as five years' imprisonment, considering the delay and rehabilitation. Instead, the sentencing judge imposed a six-year sentence for the trafficking count and set a parole eligibility date that reflected Mr Ada's personal circumstances and rehabilitation efforts.
The court concluded that the sentencing judge had appropriately balanced the need for deterrence, denunciation, and justice in the circumstances. The appeal against the sentence was dismissed, and the application for leave to appeal was refused.
Orders
Orders of the court
Application for leave to appeal refused.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The sentencing judge rejected the contention that the criminality of Mr Ada’s offending could be appropriately recognised by a sentence as low as five years’ imprisonment, when balanced against the delay in the proceeding coming to court and the impressive rehabilitation, and considered that the criminality would be properly reflected in a sentence of six years’ imprisonment. The sentencing judge accepted that Mr Ada’s personal circumstances did warrant the imposition of a parole eligibility date at less than the one-third mark and that would be “an appropriate balance between the need for deterrence and the need for denunciation and the need for the sentence to be just and recognise [Mr Ada’s] personal circumstances and in particular the impressive efforts towards rehabilitation”.Was there any error of principle in the sentencing judge’s consideration of delay? Mr Longhurst of counsel who appears for Mr Ada submits that there are three aspects of delay which affected Mr Ada and which were relevant for the sentencing judge to take into account: the impact on Mr Ada of the charges remaining unresolved and particularly the period of 16 months between his being charged and the removal of the circumstance of aggravation from the trafficking charge; his impressive rehabilitation; and the “fairness of the global result” taking into account the passage of time between his being charged and being sentenced. The submissions focus on the first and third aspects, as Mr Longhurst concedes that the sentencing judge had regard to Mr Ada’s impressive rehabilitation that was achieved after Mr Ada was charged. Delay in the prosecution of an offender between the charging of the offender and the sentencing of the offender may affect the sentencing in different ways according to the circumstances of the particular case. Some relevant principles are referred to in R v Phillips & Woolgrove (2008) 188 A Crim R 133 in the analysis of the authorities at [52]-[56] by Fraser JA (with whom each of McMurdo P and Mackenzie AJA agreed with additional reasons). The sentencing judge’s remarks reveal that Mr Ada had discharged the burden he bore to show that he had suffered from the delay in his sentencing: see Phillips at [52]. That is shown in the sentencing judge’s rejection of delay and rehabilitation as permitting the head sentence for the trafficking to be reduced to five years, but the sentencing judge then taking into account all Mr Ada’s personal circumstances and his impressive efforts towards rehabilitation (which encompassed the effect of delay on Mr Ada) in fixing the period that had to be served before Mr Ada would be eligible for parole. The submissions for Mr Ada emphasised the stress he suffered as a result of being charged with the circumstance of aggravation until that was withdrawn at the committal hearing. Dr Yoxall’s report identified that specific stress, but also the stress suffered by Mr Ada from being exposed to the criminal justice system (as a result of being caught committing the offence of trafficking in cocaine). The stress suffered by Mr Ada after being charged is a reason why delay can be a mitigating factor, because of the uncertainty for an offender of an unresolved prosecution over a longer period than usual between being charged and being sentenced.