R v Assurson

Case [2007] QCA 273


SUPREME COURT OF QUEENSLAND

CITATION:

R v Assurson [2007] QCA 273

PARTIES:

R
v
ASSURSON, Hev
(applicant/appellant)

FILE NO/S:

CA No 72 of 2007
SC No 561 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2007

JUDGES:

Williams and Keane JJA and Mullins J
Separate reasons for judgment of each member of the Court, Williams and Keane JA concurring as to the orders made, Mullins J dissenting in part

ORDER:

1. Grant leave to appeal against sentence
2. Allow the appeal to the extent of:
(a) deleting from the sentence imposed on the count of trafficking the serious violent offence declaration
(b) fixing the applicant's parole eligibility date as 14 September 2012
3. Otherwise confirm the sentences imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to various drug related offences, including trafficking – where sentence of nine years imprisonment imposed – where head sentence, if applicant had not pleaded but instead convicted by jury, would be 12 to 13 years imprisonment, with an automatic serious violent offence declaration attached, requiring 80 per cent of sentence to be served – where plea came at late stage – where serious violent offence declaration imposed by learned sentencing judge without request by either counsel, to achieve a "just and equitable sentence" – whether making of declaration was warranted – whether sentencing discretion miscarried

Corrective Services Act 2006 (Qld), s 184
Penalties and Sentences Act 1992 (Qld), s 160C(5), s 161B(3)

Markarian v The Queen (2005) 79 ALJR 1048, cited
R v Elizalde [2006] QCA 330; CA No 158 of 2006, 1 September 2006, cited
R v McDougall & Collas[2006] QCA 365; CA Nos 83 & 94 of 2006, 22 September 2006, cited
R v O'Brien[2006] QCA 482; CA No 259 of 2006, 20 November 2006, cited
R v Saunders [2007] QCA 93; CA No 4 of 2007, 23 March 2007, applied
R v Taylor[2006] QCA 459; CA No 162 of 2006, 10 November 2006, cited

COUNSEL:

A W Moynihan SC for the applicant/appellant
B G Campbell for the respondent

SOLICITORS:

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

  1. WILLIAMS JA: The applicant seeks leave to appeal against a head sentence of nine years imprisonment with a declaration that he was convicted of a serious violent offence imposed after he pleaded guilty to trafficking in methylamphetamine, cocaine, and 3,4-methylenedioxymethamphetamine and other drug offences.  The critical submission on behalf of the applicant was that the making of a serious violent offence declaration meant the sentence was manifestly excessive.  Because of the declaration the applicant's parole eligibility date would be after he had served 7.2 years in custody.

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Details
AGLC
R v Assurson [2007] QCA 273
Case
[2007] QCA 273
Decision Date

CaseChat Overview and Summary

The appeal before the court concerned the applicant's challenge to his sentence, following a guilty plea to various drug-related offences, including trafficking. The applicant had pleaded guilty at a late stage, and the sentence imposed by the trial judge was nine years imprisonment. The applicant argued that the serious violent offence declaration attached to the sentence was unwarranted and that the trial judge had miscarried in their sentencing discretion. The court was required to determine whether the imposition of the serious violent offence declaration was justified and whether the sentencing discretion had been exercised correctly.

The court considered the legal principles governing the imposition of a serious violent offence declaration and the circumstances in which such a declaration could be made. The court noted that the declaration was not requested by either counsel and was imposed by the trial judge to achieve a "just and equitable sentence." The court examined the nature of the offences, the applicant's criminal history, and the circumstances surrounding the offences to determine whether the declaration was warranted. The court also considered whether the trial judge had miscarried in their sentencing discretion by imposing the declaration without a request from either counsel.

After considering the arguments and the relevant legal principles, the court concluded that the imposition of the serious violent offence declaration was not warranted in this case. The court found that the trial judge had miscarried in their sentencing discretion by imposing the declaration without a request from either counsel. The court granted leave to appeal against the sentence and allowed the appeal to the extent of deleting the serious violent offence declaration from the sentence imposed on the count of trafficking and fixing the applicant's parole eligibility date as 14 September 2012. The court otherwise confirmed the sentences imposed.

Orders

Orders of the court

1. Grant leave to appeal against sentence

2. Allow the appeal to the extent of:

(a) deleting from the sentence imposed on the count of trafficking the serious violent offence declaration

(b) fixing the applicant's parole eligibility date as 14 September 2012

3. Otherwise confirm the sentences imposed

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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