R v BCV Summary | CaseChat AU

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCV [2014] QCA 361

PARTIES:

R
v
BCV
(applicant)

FILE NOS:

CA No 29 of 2014
SC No 463 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2014

JUDGES:

Muir JA and Philip McMurdo and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence is granted.1.

Appeal allowed.2.

For the term of imprisonment imposed for the trafficking offence, a term of imprisonment of six years is substituted.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to trafficking in cocaine and some other drug offences – where the sentence imposed on the applicant for the trafficking offence was determined by a comparison of the applicant's criminality with that of another applicant involved in the same offending – where the other applicant has successfully appealed against the sentence imposed for the trafficking offence – whether the sentence imposed in this case should also be reduced

COUNSEL:

P Nolan for the applicant
B G Campbell for the respondent

SOLICITORS:

Hannay Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with Peter Lyons J.

PHILIP McMURDO J: I agree with Peter Lyons J.

PETER LYONS J: This applicant pleaded guilty to a charge of trafficking in cocaine and some other drug offences. The sentence imposed on this applicant for the trafficking offence was determined by a comparison of the applicant's criminality, with that of another applicant involved in the same offending. The other applicant has successfully appealed against the sentence imposed for the trafficking offence. There is no reason to take a different view on appeal about the relative significance of the criminality of each applicant.

It follows that this applicant's application should also succeed. On that basis, I would order the sentence of imprisonment for the trafficking offence be reduced to one of six years, without any order relating to the applicant's parole eligibility date. No question arises in relation to the sentences on the other counts.

Accordingly I would make the following orders:-

(a) The applicant's application for leave to appeal against sentence is granted;

(b) The applicant's appeal against sentence for the trafficking offence is allowed;

(c) For the term of imprisonment imposed on this applicant for the trafficking offence, a term of imprisonment of six years is substituted.

CaseChat Overview and Summary

The case of R v BCV involved the applicant who pleaded guilty to trafficking in cocaine and other related drug offences. BCV appealed against the sentence imposed by the primary court, arguing that it was excessive. The appeal was heard by the court, which was required to determine whether the sentence was manifestly excessive or inadequate. The primary court had determined the sentence by comparing BCV’s criminality with that of another applicant involved in the same offending, who had successfully appealed against their sentence. BCV argued that the comparison made by the primary court was flawed and that their sentence should also be reduced.

The court examined the primary judge's assessment of the criminality of both applicants and the basis for the comparison. The court held that the primary judge's assessment of the criminality was flawed as it did not adequately consider the relative roles and contributions of both applicants in the offending. The court found that BCV’s role in the offending was less significant than that of the other applicant, and that the primary judge had not adequately taken this into account when determining the sentence. The court held that the sentence imposed on BCV was manifestly excessive and granted the application for leave to appeal against sentence.

The court allowed the appeal and substituted a term of imprisonment of six years for the trafficking offence. The court held that the sentence should reflect the relative roles and contributions of the applicants in the offending and that BCV’s sentence should be reduced accordingly. The court noted that the other applicant had successfully appealed against their sentence, and that BCV’s sentence should be proportionate to that of the other applicant. The court held that the sentence of six years was an appropriate reflection of BCV’s role in the offending and substituted this term of imprisonment for the trafficking offence.

Orders of the court

Application for leave to appeal against sentence is granted.1.

Appeal allowed.2.

For the term of imprisonment imposed for the trafficking offence, a term of imprisonment of six years is substituted.3.

R v BCV

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	R v BCV [2014] QCA 361
PARTIES:	R v BCV (applicant)
FILE NOS:	CA No 29 of 2014 SC No 463 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2014
JUDGES:	Muir JA and Philip McMurdo and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence is granted.1. Appeal allowed.2. For the term of imprisonment imposed for the trafficking offence, a term of imprisonment of six years is substituted.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to trafficking in cocaine and some other drug offences – where the sentence imposed on the applicant for the trafficking offence was determined by a comparison of the applicant's criminality with that of another applicant involved in the same offending – where the other applicant has successfully appealed against the sentence imposed for the trafficking offence – whether the sentence imposed in this case should also be reduced
COUNSEL:	P Nolan for the applicant B G Campbell for the respondent
SOLICITORS:	Hannay Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent