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 2017DIVISION:
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 501R 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, citedCOUNSEL:
J J Allen QC, with E Whitton, for the applicant
P McCarthy for the respondentSOLICITORS:
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…
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- AGLC
- R v Ardadi-Tuba [2018] QCA 326
- Case
- [2018] QCA 326
- Decision Date
CaseChat Overview and Summary
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
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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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