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
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
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.
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.
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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