R v Ali

Case [2023] QCA 207

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ali [2023] QCA 207

PARTIES:

R
v
ALI, Hamish Devante Joseph
(applicant)

FILE NO/S:

CA No 80 of 2023
DC No 113 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Ipswich – Date of Sentence: 26 April 2023 (Burnett DCJ)

DELIVERED ON:

27 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2023

JUDGES:

Flanagan JA, Buss AJA and Kelly J

ORDER:

Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to eight counts of supplying a dangerous drug (counts 1-8), possessing a dangerous drug in excess of 500 grams (count 9) and unlawful possession of a category H weapon (count 10) – where the applicant was sentenced to 12 months’ imprisonment, suspended forthwith, with an operational period of two years six months (count 1), nine months’ imprisonment, suspended forthwith, with an operational period of 18 months (counts 2-9) and 18 months’ probation with a special requirement for monthly random drug testing (count 10) – where the applicant conducted acts preparatory to the supply of cannabis (counts 1-5, 7 and 8), supplied cannabis (count 6), possessed loose cannabis and cannabis seeds weighing 897 grams in total and $5,050 cash (count 9) and possessed a shortened lever-action rifle (count 10) – where the applicant was 19 at the time of offending with a favourable work history and no relevant prior criminal record – whether the sentencing judge erred in recording a conviction for each count by failing to take into account the impact that recording a conviction will have on the applicant’s chances of finding employment – whether the sentencing judge erred in finding that the offending was “obviously highly profitable” – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 12, s 143
Criminal Code (Qld), s 668E

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited
R v Bain[1997] QCA 35, cited
R v BCO [2016] 1 Qd R 290; [2013] QCA 328, cited
R v Briese; Ex parte Attorney-General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, cited
R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd R 182; [1993] QCA 271, cited
R v Cay, Gersch & Schell; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, considered
R v Christodoulou[2019] QCA 233, considered
R v Crook[2012] QCA 305, considered
R v DBR[2019] QCA 218, cited
R v Holmes[2008] QCA 259, considered
R v Kelley[2018] QCA 18, cited
R v Kleimeyer[2018] QCA 9, considered
R v LAL [2019] 2…

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Details
AGLC
R v Ali [2023] QCA 207
Case
[2023] QCA 207
Decision Date

CaseChat Overview and Summary

The case of R v Ali involved an appeal against the sentence imposed on the applicant, who had pleaded guilty to various drug-related offences. The applicant was sentenced to a series of suspended sentences and probation, following his involvement in the supply and possession of cannabis and illegal possession of a firearm. The applicant contested the sentence on several grounds, including whether the sentencing judge had erred in recording a conviction for each count and whether the judge had correctly assessed the profitability of the offending. The case was heard by the court, which was tasked with determining the validity of the applicant's arguments and the appropriateness of the sentence.

The court considered the arguments presented by the applicant and the Crown. The primary legal issues revolved around the sentencing judge's decision to record a conviction for each count, the assessment of the offending's profitability, and the overall severity of the sentence. The court examined the relevant statutory provisions and legal principles applicable to sentencing, particularly those outlined in the Penalties and Sentences Act. The court also evaluated the factual circumstances of the offences, the applicant's background, and the sentencing principles that should guide the imposition of penalties.

In its reasoning, the court found that the sentencing judge had not erred in recording a conviction for each count, as the evidence supported separate convictions for distinct acts. The court also determined that the sentencing judge had reasonably assessed the profitability of the offending based on the available evidence. Furthermore, the court concluded that the sentence was not manifestly excessive, considering the nature and circumstances of the offences, the applicant's age, and his background. The court rejected the applicant's contentions and dismissed the application for leave to appeal against the sentence.

The final orders of the court were that the application for leave to appeal against the sentence was dismissed, affirming the sentencing judge's decision. The court's judgment upheld the sentence imposed on the applicant, finding that it was appropriate and in accordance with the relevant legal principles.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed.

Background

Background to the litigation

I would dismiss the application for leave to appeal against sentence. My reasons are as follows.The facts and circumstances of the offences The facts and circumstances of the offences are set out in a statement of facts tendered at the sentencing hearing before his Honour. The facts and circumstances recounted in the statement, with some minor corrections, were agreed by the Crown and the applicant. On 22 February 2022, police executed a search warrant at the applicant’s house. The applicant was not present. During the search, police located the following items in the applicant’s bedroom:(a)a vacuum sealed bag containing 455 grams of cannabis in a black Adidas brand bag;(b)a plastic bag containing 429 grams of loose cannabis in the black Adidas brand bag;(c)a metal container containing two cannabis seeds which weighed less than one gram;(d)a shortened lever-action rifle (category H) in the black Adidas brand bag; and(e)$5,050 in Australian currency inside a black lock-box in the black Adidas brand bag. Police located an additional 11 grams of loose cannabis in the applicant’s bedroom and in a garage on the property. An additional clip seal bag was found in the garage which contained cannabis seeds weighing about one gram. On 22 February 2022, police located the applicant. He voluntarily attended at a police station and participated in an interview in respect of other matters. Police seized the applicant’s mobile telephone. He gave police the PIN code. The applicant told police that they would locate evidence of cannabis supply on his telephone. He also told police that he did not know anything about the black Adidas brand bag or its contents. Police reviewed the applicant’s mobile telephone. The review showed that the applicant was involved in supplying cannabis to associates. Later on 22 February 2022, the applicant participated in another interview with police in which he admitted having supplied cannabis to associates. However, he declined to elaborate upon the details of each supply. Counts 1 to 8 inclusive were based upon information obtained by police from their review of the applicant’s mobile telephone. On 10 December 2021, the applicant contacted ‘BC’ via Facebook messenger to enquire if he was “still moving buds”. BC replied “Yeah bro how much qp” to which the applicant said “1400 I can do you bro. All strain too I have some shit from the Russians coming in”. The Crown alleged that the applicant conducted acts preparatory to the supply of a quarter pound (114 grams) of cannabis for $1,400 (count 1). On 11 December 2021, the applicant contacted ‘AN’ via Facebook messenger to enquire if her mate needed ‘buds’. AN told the applicant she would let him know when she needed it and asked what strain he was selling. The applicant told AN “... yeah I’ll always have strains for cheap”. The Crown alleged that the applicant conducted acts preparatory to the supply of cannabis (count 2). On 15 December 2021, ‘DJ’ contacted the applicant to enquire if he could source a ‘q’ off him. The applicant replied “Yeah bro. I’ll weigh her up now just lmk [sic] when you’ve got cash out and stuff”. The Crown alleged that the applicant conducted acts preparatory to the supply of a quarter ounce (7 grams) of cannabis (count 3).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have already recounted the facts and circumstances of the present case that are relevant to each of the factors specifically enumerated in s 12(2) of the Penalties and Sentences Act. I consider that, when all of the facts and circumstances required to be considered in accordance with s 12(2) are evaluated and weighed, the sentencing judge’s decision to record a conviction on count 10 was correct.Conclusion In my opinion, the application for leave to appeal against sentence should be dismissed. KELLY J: I agree with the reasons of Buss AJA.

Ratio Decidendi

Legal Principle Established

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