R v Ardadi-Tuba - [2018] QCA 326

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ardadi-Tuba [2018] QCA 326

PARTIES:

R
v
ARDADI-TUBA, Hamad
(applicant)

FILE NO/S:

CA No 70 of 2018
DC No 2671 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 13 March 2018 (Clare SC DCJ)

DELIVERED ON:

27 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2018

JUDGES:

Gotterson and Philippides JJA and Henry J

ORDERS:

1.   Grant leave to appeal against sentence.

2.   Allow the appeal.

3.   Vary the sentence for Count 2 by substituting for the term of imprisonment and parole release date, a term of imprisonment of nine months suspended after 117 days for an operational period of nine months.

4.   The sentence is otherwise affirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to offences against s 75 and s 409 of the Criminal Code (Qld) – where the applicant was sentenced to two and a half years of probation for the former offence and two years imprisonment, with immediate release on parole, for the latter offence – where the sentence of two years imprisonment means the applicant has a “substantial criminal record”, and is deemed not to pass the “character test”, under the Migration Act 1958 (Cth) – where the relevant Minister must therefore cancel the applicant’s visa if he is at some later time required to serve some part of his sentence in actual custody – whether the sentence is manifestly excessive in all of the circumstances

Criminal Code (Qld), s 65, s 409
Migration Act 1958 (Cth), s 501

R v Cay, Gersch and Schell; Ex parte Attorney General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited
R v Dullroy & Yates; Ex parte Attorney General (Qld)[2005] QCA 219, cited
R v Kuzmanovski; Ex parte Attorney General (Qld)[2012] QCA 19, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Taylor & Napatali; Ex parte Attorney General (Qld) (1999) 106 A Crim R 578; [1999] QCA 323, cited

COUNSEL:

J J Allen QC, with E Whitton, for the applicant
P McCarthy for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

GOTTERSON JA: On 27 November 2017, the applicant, Hamad Ardadi-Tuba, pleaded guilty in the District Court at Brisbane to two counts of offending on two separate occasions on 2 June 2016. Count 1 alleged an offence against s 75 of the Criminal Code (Qld) in that on that date at Upper Mt Gravatt, the applicant, with intent to alarm Eyoel Yohanef Gorfu (“the first complainant”), pretended to be armed such as was likely to cause the first complainant to fear bodily harm to himself. Count 2 alleged an offence against s 409 of the Criminal Code in that at Upper Mt…

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 Ardadi-Tuba

Details

AGLC: R v Ardadi-Tuba [2018] QCA 326
Case: [2018] QCA 326
Decision Date: 27 November 2018

CaseChat Overview and Summary

In the case of R v Ardadi-Tuba, the appellant challenged the sentence imposed following his guilty plea to charges under sections 75 and 409 of the Criminal Code (Qld). The appellant was sentenced to two and a half years of probation for the offence under section 75 and two years imprisonment, with immediate release on parole, for the offence under section 409. The crux of the appeal was the appellant's contention that the sentence of two years imprisonment was manifestly excessive, particularly given that it resulted in him being deemed to have a "substantial criminal record" under the Migration Act 1958 (Cth), and thus failing the "character test". This failure would require the relevant Minister to cancel the appellant's visa if he were ever required to serve part of his sentence in actual custody.

The court was tasked with determining whether the sentence was manifestly excessive in the circumstances. This required a careful consideration of the principles of sentencing, including the need for the sentence to be proportionate to the offence, to provide adequate deterrence and to promote the rehabilitation of the offender. The court also needed to consider the specific circumstances of the appellant, including his background and the impact of the sentence on his immigration status. The court recognised the significance of the appellant's immigration status and the potential consequences of the sentence in this regard, but also had to balance these considerations against the need to uphold the principles of sentencing.

The court ultimately concluded that the sentence was indeed manifestly excessive. The court found that the two-year term of imprisonment was disproportionate to the offences committed and did not adequately reflect the need for rehabilitation and deterrence. The court also noted that the sentence would have a significant impact on the appellant's immigration status, which was an important factor to consider in determining the appropriate sentence. The court varied the sentence by substituting the term of imprisonment with a sentence of nine months suspended after 117 days for an operational period of nine months, which the court considered to be more proportionate and appropriate in the circumstances. The sentence for the offence under section 75 was otherwise affirmed.

The final orders of the court were to grant leave to appeal against sentence, to allow the appeal, to vary the sentence for Count 2 as outlined above, and to affirm the sentence for Count 1. The court's decision provides useful guidance for sentencing courts when considering the impact of a sentence on an appellant's immigration status, and the need to balance this consideration against the principles of sentencing.

Orders

Orders of the court

1. Grant leave to appeal against sentence.

2. Allow the appeal.

3. Vary the sentence for Count 2 by substituting for the term of imprisonment and parole release date, a term of imprisonment of nine months suspended after 117 days for an operational period of nine months.

4. The sentence is otherwise affirmed.

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

Full text does not contain this section.

CITATION:	R v Ardadi-Tuba [2018] QCA 326
PARTIES:	R v ARDADI-TUBA, Hamad (applicant)
FILE NO/S:	CA No 70 of 2018 DC No 2671 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 13 March 2018 (Clare SC DCJ)
DELIVERED ON:	27 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2018
JUDGES:	Gotterson and Philippides JJA and Henry J
ORDERS:	1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Vary the sentence for Count 2 by substituting for the term of imprisonment and parole release date, a term of imprisonment of nine months suspended after 117 days for an operational period of nine months. 4. The sentence is otherwise affirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to offences against s 75 and s 409 of the Criminal Code (Qld) – where the applicant was sentenced to two and a half years of probation for the former offence and two years imprisonment, with immediate release on parole, for the latter offence – where the sentence of two years imprisonment means the applicant has a “substantial criminal record”, and is deemed not to pass the “character test”, under the Migration Act 1958 (Cth) – where the relevant Minister must therefore cancel the applicant’s visa if he is at some later time required to serve some part of his sentence in actual custody – whether the sentence is manifestly excessive in all of the circumstances Criminal Code (Qld), s 65, s 409 Migration Act 1958 (Cth), s 501 R v Cay, Gersch and Schell; Ex parte Attorney General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited R v Dullroy & Yates; Ex parte Attorney General (Qld)[2005] QCA 219, cited R v Kuzmanovski; Ex parte Attorney General (Qld)[2012] QCA 19, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v Taylor & Napatali; Ex parte Attorney General (Qld) (1999) 106 A Crim R 578; [1999] QCA 323, cited
COUNSEL:	J J Allen QC, with E Whitton, for the applicant P McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent