R v Carey

Case [2015] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v Carey [2015] QCA 51

PARTIES:

R
v
CAREY, Benjamin Francis
(applicant)

FILE NO/S:

CA No 133 of 2014
SC No 5 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Rockhampton

DELIVERED ON:

14 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2015

JUDGES:

Margaret McMurdo P and Holmes and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   A sentence of nine years imprisonment is substituted for the sentence of 10 years imprisonment imposed below.

4.   The applicant is eligible for parole on 24 May 2019.

5.   The sentence imposed below is otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty, together with four co-offenders, to trafficking in dangerous drugs – where the applicant was sentenced to 10 years imprisonment to be served concurrently with the remaining three years and seven months of a five year sentence he was then serving – where one of the applicant’s co-offenders successfully appealed to the Court of Appeal on the basis that the sentencing judge erred in calculating the gravity of the trafficking – where the applicant contends that in light of the error identified by the Court of Appeal, his sentence should be reduced – where the respondent concedes that the error in the sentencing process meant that this Court should consider the sentencing discretion afresh but that the original sentence was not manifestly excessive – where this Court must balance the totality principle with the principle that sentences of co-offenders must not be so disparate as to engender a justifiable sense of grievance on the part of an offender – where the applicant had a significant criminal history including drug trafficking – where the applicant committed the present offences whilst on bail for a previous drug trafficking offence – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), Part 9A

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied
R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, cited
R v Bost[2014] QCA 264, cited
R v Feakes[2009] QCA 376, cited
R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited
R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, cited
R v Ryan[2014] QCA 78, cited
R v Westphal[2009] QCA 223, cited

COUNSEL:

J J Allen QC for the applicant
B J Power for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P: The…

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Details
AGLC
R v Carey [2015] QCA 51
Case
[2015] QCA 51
Decision Date

CaseChat Overview and Summary

The case of R v Carey involved the applicant who, along with four co-offenders, pleaded guilty to trafficking in dangerous drugs. The applicant was sentenced to 10 years imprisonment to be served concurrently with the remaining three years and seven months of a five-year sentence he was already serving. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive in light of the Court of Appeal's findings in a related case, Ryan, where a similar error was identified in the sentencing process. The respondent conceded that the error identified in Ryan should lead to a reconsideration of the sentencing discretion but argued that the original sentence was not manifestly excessive.

The legal issues the court needed to decide were whether the error in the sentencing process warranted a reduction in the applicant's sentence and, if so, what the appropriate sentence should be. The court had to balance the totality principle with the requirement that sentences of co-offenders should not be so disparate as to engender a justifiable sense of grievance. The applicant had a significant criminal history, including drug trafficking, and committed the present offences while on bail for a previous drug trafficking offence. The court also had to consider the applicant's role in the trafficking operation, his criminal history, and the impact of the sentence on his family, particularly his young daughter.

In reaching its decision, the court acknowledged the error identified in the Ryan case and agreed that the sentencing discretion should be reconsidered. The court found that the applicant's role in the trafficking operation was significant, and he enjoyed substantial returns from the enterprise. However, the court also noted the applicant's efforts to rehabilitate himself while in custody and his family circumstances. The court ultimately decided that a sentence of nine years imprisonment was appropriate, substituting this sentence for the original 10-year sentence. This decision ensured that the applicant's sentence was commensurate with the offence and balanced with the sentences of his co-offenders. The court also set the parole eligibility date for 24 May 2019 and confirmed the rest of the sentence imposed by the lower court.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. A sentence of nine years imprisonment is substituted for the sentence of 10 years imprisonment imposed below.

4. The applicant is eligible for parole on 24 May 2019.

5. The sentence imposed below is otherwise confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sentencing judge noted that the trafficking occurred over about five months. The applicant’s criminality was below that of Ryan. Each offender used drugs including methylamphetamine, but there was no evidence that any was in the grip of an addiction. Ryan’s plea was late but was of utilitarian value and showed indications of remorse. Some profits of the trafficking were channelled to the offenders for their own drug taking. The present applicant was one of the top three in the trafficking ring. He answered the phone and worked shifts. He moved drugs around, provided cash, bought and sold drugs and he was aware of a firearm in the house from which the trafficking was conducted. When arrested, he tried to conceal a clip-seal bag containing 0.26 grams of methylamphetamines with 17.6 per cent purity. He enjoyed significant returns from the enterprise, although some of the profits paid for his drug taking. This was the third time the judge had sentenced him. He was educated to year nine and commenced to use cannabis at age 15, progressing to ecstasy and methamphetamines. Since his arrest he had not breached prison discipline, had undertaken courses, endeavoured to improve his skills by obtaining various tickets and had tested negative for alcohol and drugs. His mother and sisters provided letters in support, as they had at past sentencing hearings. He had a three year old daughter who would be negatively impacted by the applicant being sentenced to a significant term of imprisonment. He pleaded guilty soon after receiving legal advice.This Court’s decision in Ryan This Court in Ryan held that the primary judge erred in calculating the extent and gravity of the trafficking for which Ryan, and eventually all co-offenders, were sentenced[4] in authoritatively concluding that the trafficking involved at least hundreds of thousands of dollars and probably more than a million dollars. After considering comparable sentences, this Court held that an effective combined sentence of 14 years and five months imprisonment, with parole eligibility after 12 years for both the 2011 conviction of unlawful wounding and this trafficking was too harsh a penalty. This Court substituted a sentence of 10 years imprisonment for the trafficking offence. This made an effective sentence for both the 2011 conviction of unlawful wounding and the present trafficking of 12 years and five months imprisonment with parole eligibility after 10 years and five months.[4][2014] QCA 78, [42].The respondent’s contentions in this application The respondent concedes that the error identified by this court in Ryan was also an error in the sentencing process in the applicant’s case, so that this Court should consider the exercising of the sentencing discretion afresh. The respondent contends, however, that in re-sentencing the applicant for the trafficking this Court would not impose any lesser penalty than 10 years imprisonment. The Court should therefore refuse the application for leave to appeal.

Ratio Decidendi

Legal Principle Established

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