R v. Bivolaru - [2008] QCA 212

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bivolaru [2008] QCA 212

PARTIES:

R
(respondent)
v

BIVOLARU, Nicolae
(applicant)

FILE NO/S:

CA No 104 of 2008
SC No 41 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

30 July 2008

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2008

JUDGES:

Fraser JA, Mackenzie AJA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused

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 REFUSED – GENERALLY – where applicant convicted on plea of guilty of two counts of unlawfully supplying heroin – where applicant sentenced to four years imprisonment with parole eligibility after nine months – where applicant was not himself a heroin user – where the learned sentencing Judge inquired as to the amount of money exchanged for the heroin supplied by the applicant – where counsel’s response was vague – where the learned sentencing Judge expressed an estimate of the likely return to the applicant – whether the learned sentencing Judge erred by expressing such an estimate – whether the sentence was manifestly excessive

R v Cocouz[2000] QCA 370, distinguished
R v Duong[1997] QCA 395, cited
R v Ross[1995] QCA 134, cited
R v Tran[1994] QCA 573, cited

COUNSEL:

J A Fraser for the applicant (pro bono)
M B Lehane for the respondent

SOLICITORS:

Howden Saggers Lawyers for the applicant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

MACKENZIE AJA: On the 28th of April 2008, the applicant was sentenced to four years imprisonment with parole eligibility after nine months for two offences of supplying heroin.

The charges are very old, having been committed in the second half of 1999 and February 2000 respectively. No fault is attributed to the applicant for the delay in having the matters finally disposed of. He applies for leave to appeal against sentence.

The basic facts are that in the first period referred to, the applicant was introduced to a drug user and street dealer in heroin. He asked her whether she was interested in selling heroin for him. She initially declined but at a subsequent meeting, took some heroin from him on a credit basis. She said that the quantity was about two grams. Of course, because of the circumstances of the matter, the purity of the heroin is unknown. She sold this heroin and accounted to the applicant for the proceeds.

Several weeks after the first sale, the applicant contacted her and arranged to meet her at a coffee shop on the Cairns Esplanade. He was in the company of two other men and the proposition was put to her that she might sell more heroin. She sold more heroin for one of the…

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

Case: [2008] QCA 212
Decision Date: 30 July 2008

CaseChat Overview and Summary

The applicant, Bivolaru, was convicted on a plea of guilty for two counts of unlawfully supplying heroin. Following the conviction, Bivolaru was sentenced to four years imprisonment, with eligibility for parole after serving nine months. Notably, Bivolaru himself was not a user of heroin. The sentencing Judge questioned the amount of money exchanged for the heroin supplied by Bivolaru, but counsel provided a vague response. Subsequently, the Judge expressed an estimate of the likely return to Bivolaru from the transactions. The primary legal issues before the court were whether the sentencing Judge erred in expressing such an estimate and whether the imposed sentence was manifestly excessive.

The court examined the sentencing process to determine if the Judge's estimate of the financial return influenced the sentence unduly. It considered whether the sentence imposed was manifestly excessive in light of the circumstances of the case, including Bivolaru's non-use of heroin and the vagueness of the financial details provided during sentencing. The court assessed whether the estimate constituted an error that could have impacted the fairness of the sentencing process. After thorough analysis, the court found no grounds to interfere with the sentence, concluding that it was not manifestly excessive and that no error had been made by the Judge in expressing an estimate of the likely financial return.

Consequently, the court dismissed Bivolaru's appeal against the sentence. The court held that the sentence was proportionate to the offence committed and that the Judge's estimate did not constitute an error warranting a new trial or a reduced sentence. The application to reduce the sentence was refused, and the original sentence of four years imprisonment with parole eligibility after nine months was upheld.

Orders

Orders of the court

Application refused

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 Bivolaru [2008] QCA 212
PARTIES:	R (respondent) v BIVOLARU, Nicolae (applicant)
FILE NO/S:	CA No 104 of 2008 SC No 41 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED EX TEMPORE ON:	30 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2008
JUDGES:	Fraser JA, Mackenzie AJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
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 REFUSED – GENERALLY – where applicant convicted on plea of guilty of two counts of unlawfully supplying heroin – where applicant sentenced to four years imprisonment with parole eligibility after nine months – where applicant was not himself a heroin user – where the learned sentencing Judge inquired as to the amount of money exchanged for the heroin supplied by the applicant – where counsel’s response was vague – where the learned sentencing Judge expressed an estimate of the likely return to the applicant – whether the learned sentencing Judge erred by expressing such an estimate – whether the sentence was manifestly excessive R v Cocouz[2000] QCA 370, distinguished R v Duong[1997] QCA 395, cited R v Ross[1995] QCA 134, cited R v Tran[1994] QCA 573, cited
COUNSEL:	J A Fraser for the applicant (pro bono) M B Lehane for the respondent
SOLICITORS:	Howden Saggers Lawyers for the applicant (pro bono) Director of Public Prosecutions (Queensland) for the respondent