R v. Bosnjak - [2007] QCA 325

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bosnjak [2007] QCA 325

PARTIES:

R
v
BOSNJAK, Oliver Peter
(applicant/appellant)

FILE NO/S:

CA No 90 of 2007
SC No 493 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

4 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2007

JUDGES:

Keane and Holmes JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Leave to appeal against sentence granted
2. Appeal allowed to the extent of adding a date for eligibility for parole after three and a half years: taking into account the 72 days pre-sentence custody, on 10 July 2010

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 – PARTICULAR OFFENCES – OTHER OFFENCES – where the applicant was convicted and sentenced to nine years imprisonment on one count of trafficking in a dangerous drug; convicted, but not punished, on one count of supplying a dangerous drug; sentenced to 12 months imprisonment on two of the possessing a dangerous drug counts and two years on the third possession count; and sentenced to five years imprisonment in respect of possessing property obtained from supplying a dangerous drug – where all sentences were ordered to be served concurrently – whether the sentence was manifestly excessive given the applicant’s demonstrated rehabilitation

R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered
R v Rizk[2004] QCA 382; CA No 224 of 2004, 15 October 2004, considered
R v Donnelly and Corbic[2007] QCA 77; CA No 207 & 219 of 2006, 16 March 2007, considered
R v Bradforth[2003] QCA 183; CA No 423 of 2002, 9 May 2003, considered

COUNSEL:

S T Courtney for the applicant
T A Fuller for the respondent

SOLICITORS:

Noel Woodall & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: The applicant for leave to appeal against sentence was convicted after a trial of one count of trafficking in a dangerous drug, one count of supplying a dangerous drug, three counts of possessing a dangerous drug and one count of possessing property obtained from supplying a dangerous drug. He was sentenced to nine years imprisonment on the trafficking count; convicted but not punished on the supply count; sentenced to twelve months imprisonment on two of the possession counts and two years on the third; and was sentenced to five years imprisonment in respect of possessing property obtained from supplying a dangerous drug. All sentences were ordered to be served concurrently.

The trafficking charge was unusual in that the offence (as well as the others) was said to have been committed on a single day, 7th of June 2002. Surveillance was being conducted on one…

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. Bosnjak

Details

AGLC: R v Bosnjak [2007] QCA 325
Case: [2007] QCA 325
Decision Date: 4 October 2007

CaseChat Overview and Summary

The case of R v. Bosnjak involved an appeal against the sentence imposed by the court on the applicant, who was convicted of multiple drug-related offences. The applicant was found guilty of trafficking in a dangerous drug, supplying a dangerous drug (for which no sentence was imposed), and possessing dangerous drugs and property obtained from supplying a dangerous drug. The court sentenced the applicant to nine years imprisonment for trafficking, 12 months for two counts of possessing a dangerous drug, and two years for the third possession count. Additionally, the applicant was sentenced to five years for possessing property obtained from supplying a dangerous drug. All sentences were ordered to run concurrently. The applicant sought to appeal the sentence, arguing that it was manifestly excessive given the evidence of their rehabilitation.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the applicant's demonstrated rehabilitation. The court was required to assess the totality of the sentence, considering both the nature of the offences and the applicant's personal circumstances, including their efforts towards rehabilitation. The court also needed to determine whether the sentence could be reduced in a way that would still reflect the seriousness of the offences while aligning with the principles of justice and proportionality.

The court found that while the sentence was severe, it was not manifestly excessive. However, the court did consider that the applicant's demonstrated rehabilitation should be taken into account. The court acknowledged that the applicant had taken significant steps towards rehabilitation and had shown a genuine commitment to changing their life. Therefore, the court decided to allow the appeal in part by adding a date for eligibility for parole after three and a half years. This adjustment took into account the 72 days of pre-sentence custody the applicant had already served, resulting in a new parole eligibility date of 10 July 2010. This decision reflected a balance between the need to punish the applicant for their crimes and the recognition of their efforts towards rehabilitation.

Orders

Orders of the court

1. Leave to appeal against sentence granted

2. Appeal allowed to the extent of adding a date for eligibility for parole after three and a half years: taking into account the 72 days pre-sentence custody, on 10 July 2010

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 Bosnjak [2007] QCA 325
PARTIES:	R v BOSNJAK, Oliver Peter (applicant/appellant)
FILE NO/S:	CA No 90 of 2007 SC No 493 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	4 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2007
JUDGES:	Keane and Holmes JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Leave to appeal against sentence granted 2. Appeal allowed to the extent of adding a date for eligibility for parole after three and a half years: taking into account the 72 days pre-sentence custody, on 10 July 2010
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 – PARTICULAR OFFENCES – OTHER OFFENCES – where the applicant was convicted and sentenced to nine years imprisonment on one count of trafficking in a dangerous drug; convicted, but not punished, on one count of supplying a dangerous drug; sentenced to 12 months imprisonment on two of the possessing a dangerous drug counts and two years on the third possession count; and sentenced to five years imprisonment in respect of possessing property obtained from supplying a dangerous drug – where all sentences were ordered to be served concurrently – whether the sentence was manifestly excessive given the applicant’s demonstrated rehabilitation R v Raciti [2004] QCA 359; CA No 229 of 2004, 29 September 2004, considered R v Rizk[2004] QCA 382; CA No 224 of 2004, 15 October 2004, considered R v Donnelly and Corbic[2007] QCA 77; CA No 207 & 219 of 2006, 16 March 2007, considered R v Bradforth[2003] QCA 183; CA No 423 of 2002, 9 May 2003, considered
COUNSEL:	S T Courtney for the applicant T A Fuller for the respondent
SOLICITORS:	Noel Woodall & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent