R v Bobonica & Runcan - [2009] QCA 287

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bobonica & Runcan [2009] QCA 287

PARTIES:

R
v
BOBONICA, Marcel
(applicant)

R
v
RUNCAN, Ioan John
(applicant)

FILE NO/S:

CA No 97 of 2009
CA No 108 of 2009
SC No 483 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2009

JUDGES:

McMurdo P, Muir JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In Appeal No 97 of 2009

1.   Application for leave to appeal allowed.

2.   Appeal allowed but only to the extent that the sentences imposed for counts 3 to 8 inclusive be set aside and that no further punishment be imposed.

In Appeal No 108 of 2009

1.   Application for leave to appeal allowed.

2.   Appeal allowed but only to the extent that –

(i)         a sentence of nine years imprisonment be substituted for the sentence of 11 years imposed at first instance;

(ii)        the sentences imposed for counts 3 to 11 inclusive be set aside and that no further punishment be imposed;

3.   Declare that the applicant has been convicted of a serious violent offence under section 161B of the Penalties and Sentences Act 1992 (Qld).

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant charged with one count of trafficking, six counts of supplying a dangerous drug and one count of possessing a thing used in connection with trafficking – where applicant pleaded guilty and was sentenced to a head sentence of nine years imprisonment for the trafficking offence and to other lesser sentences – where other members of the same drug distribution network captured in the same undercover operation sentenced to head sentences of eight years imprisonment and six and a half years imprisonment – where applicant submitted there was little, if anything to distinguish the conduct of these members from his offending conduct – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant charged with one count of trafficking and nine counts of supplying a dangerous drug – where applicant pleaded guilty and received a head sentence of 11 years imprisonment for the trafficking offence and various other concurrent sentences – where 11 year term of imprisonment was ordered to be served cumulatively upon remainder of earlier terms of imprisonment – whether lack of parity between applicant’s sentence and that of his co-offender – whether primary judge had sufficient regard to the totality principle

Criminal Code 1899 (Qld), s 16
Penalties and Sentences Act 1992 (Qld), s 156A, s 161B, Part 9A

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Bradforth [2003] QCA 183, considered
R v Burgess[1997] QCA…

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.

Continue reading R v Bobonica & Runcan

Details

AGLC: R v Bobonica & Runcan [2009] QCA 287
Case: [2009] QCA 287
Decision Date: 25 September 2009

CaseChat Overview and Summary

The applicants in these appeals were convicted of drug trafficking and supply offences and subsequently appealed against their sentences. The applicants were involved in drug trafficking activities captured during an undercover police operation. Bobonica was charged with one count of trafficking, six counts of supplying a dangerous drug, and one count of possessing a thing used in connection with trafficking. Runcan was charged with one count of trafficking and nine counts of supplying a dangerous drug. Both applicants pleaded guilty and were sentenced by the primary judge. The applicants argued that their sentences were manifestly excessive, particularly in comparison to the sentences of their co-offenders. They submitted that the primary judge had not given sufficient regard to the principle of parity between co-offenders and that the sentences imposed were excessive in light of the totality principle.

The court was required to determine whether the sentences imposed were manifestly excessive or inadequate. This involved examining the principle of parity between co-offenders and the totality principle, which requires that the sentence imposed on an offender must be proportionate to the gravity of the offence and the offender’s role in it. The court needed to consider whether the primary judge had sufficiently taken into account the totality of the offending, the relative roles of the co-offenders, and whether there was a lack of parity between the sentences imposed on the applicants and their co-offenders.

The court found that the sentences imposed on the applicants were manifestly excessive. The court held that there was little, if anything, to distinguish the conduct of the applicants from their co-offenders, who had been sentenced to lesser terms of imprisonment. The court found that the primary judge had not adequately considered the principle of parity between co-offenders and had not given sufficient regard to the totality principle. As a result, the court allowed the appeals, setting aside the sentences for certain counts and substituting a reduced sentence for one of the applicants. The court also declared that the applicants had been convicted of a serious violent offence under the Penalties and Sentences Act 1992 (Qld).

Orders

Orders of the court

In Appeal No 97 of 2009

1. Application for leave to appeal allowed.

2. Appeal allowed but only to the extent that the sentences imposed for counts 3 to 8 inclusive be set aside and that no further punishment be imposed.

In Appeal No 108 of 2009

1. Application for leave to appeal allowed.

2. Appeal allowed but only to the extent that –

(i) a sentence of nine years imprisonment be substituted for the sentence of 11 years imposed at first instance;

(ii) the sentences imposed for counts 3 to 11 inclusive be set aside and that no further punishment be imposed;

3. Declare that the applicant has been convicted of a serious violent offence under section 161B of the Penalties and Sentences Act 1992 (Qld).

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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CITATION:	R v Bobonica & Runcan [2009] QCA 287
PARTIES:	R v BOBONICA, Marcel (applicant) R v RUNCAN, Ioan John (applicant)
FILE NO/S:	CA No 97 of 2009 CA No 108 of 2009 SC No 483 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2009
JUDGES:	McMurdo P, Muir JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In Appeal No 97 of 2009 1. Application for leave to appeal allowed. 2. Appeal allowed but only to the extent that the sentences imposed for counts 3 to 8 inclusive be set aside and that no further punishment be imposed. In Appeal No 108 of 2009 1. Application for leave to appeal allowed. 2. Appeal allowed but only to the extent that – (i) a sentence of nine years imprisonment be substituted for the sentence of 11 years imposed at first instance; (ii) the sentences imposed for counts 3 to 11 inclusive be set aside and that no further punishment be imposed; 3. *Declare that the applicant has been convicted of a serious violent offence under section 161B of the Penalties and Sentences Act* 1992 (Qld).**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant charged with one count of trafficking, six counts of supplying a dangerous drug and one count of possessing a thing used in connection with trafficking – where applicant pleaded guilty and was sentenced to a head sentence of nine years imprisonment for the trafficking offence and to other lesser sentences – where other members of the same drug distribution network captured in the same undercover operation sentenced to head sentences of eight years imprisonment and six and a half years imprisonment – where applicant submitted there was little, if anything to distinguish the conduct of these members from his offending conduct – whether sentence manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where applicant charged with one count of trafficking and nine counts of supplying a dangerous drug – where applicant pleaded guilty and received a head sentence of 11 years imprisonment for the trafficking offence and various other concurrent sentences – where 11 year term of imprisonment was ordered to be served cumulatively upon remainder of earlier terms of imprisonment – whether lack of parity between applicant’s sentence and that of his co-offender – whether primary judge had sufficient regard to the totality principle Criminal Code 1899 (Qld), s 16 Penalties and Sentences Act 1992 (Qld), s 156A, s 161B, Part 9A Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Bradforth [2003] QCA 183, considered R v Burgess[1997] QCA…