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R v Carlisle

R v Carlisle

Case [2017] QCA 258 3 November 2017

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Carlisle [2017] QCA 258

PARTIES:

R
v
CARLISLE, Nathan
(applicant)

FILE NO/S:

CA No 55 of 2017
SC No 1038 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 2 March 2017 (Daubney J)

DELIVERED ON:

3 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2017

JUDGES:

Gotterson and Morrison JJA and Applegarth J

ORDERS:

1.   Leave to appeal granted.

2.   Appeal against sentence allowed.

3.   Sentence varied by reducing the 10 years term of imprisonment imposed on Count 1 to 9 years and set aside the automatic serious violent offence declaration.

4.   A parole eligibility date of 24 February 2020 be fixed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to ten years’ imprisonment for drug trafficking – where the applicant submits that the nominal sentence adopted by the sentencing judge was manifestly excessive and did not reflect the criminality of the offending – where the applicant submits the reduction of two years from the nominal sentence of 12 years’ imprisonment was a manifestly inadequate reduction for his very early guilty plea and the one year served in pre-sentence custody – whether the sentence was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 13A, s 159A

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Barker[2015] QCA 215, cited
R v Bradforth[2003] QCA 183, cited
R v Chen[2008] QCA 332, cited
R v Fabre[2008] QCA 386, cited
R v Gordon[2016] QCA 10, cited
R v Houkamau[2016] QCA 328, cited
R v Jacobs[2016] QCA 28, cited
R vKAQ; R v KAQ; Ex parte Attorney-General (Qld) (2015) 253 A Crim R 201; [2015] QCA 98, cited
R v Markovski[2009] QCA 299, cited
R v Marshall [1993] 2 Qd R 307; [1992] QCA 155, cited
R v Milos[2014] QCA 314, cited
R v Nabhan; R v Kostopoulos[2007] QCA 266, cited
R v Raciti[2004] QCA 359, cited
R v Rizk[2004] QCA 382, cited
R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited
R v Versac[2014] QCA 181, cited
R v Westphal[2009] QCA 223, cited
R v Wishartand Jenkins [1994] 2 Qd R 421; [1993] QCA 563, cited

COUNSEL:

P Davis QC, with A J Kimmins, for the applicant
G J Cummings for the respondent

SOLICITORS:

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

GOTTERSON JA: I agree with the orders proposed by Applegarth J and with the reasons given by his Honour.
MORRISON JA: I have read the reasons of Applegarth J and agree with those reasons and the orders his Honour proposes.
APPLEGARTH J:

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 Carlisle

Details

AGLC: R v Carlisle [2017] QCA 258
Case: [2017] QCA 258
Decision Date: 3 November 2017

CaseChat Overview and Summary

The applicant, Carlisle, appealed against his sentence for drug trafficking, contending that the ten-year imprisonment term imposed by the sentencing judge was manifestly excessive. He argued that the sentence did not adequately reflect the criminality of his offending, and that the reduction of two years from the nominal 12-year sentence was inadequate, given his early guilty plea and the one year he served in pre-sentence custody. The case reached the appellate court, which was required to determine whether the sentence was manifestly excessive in all the circumstances.

The court examined the principles governing the assessment of sentence severity, particularly the requirement for a sentence to be proportionate to the gravity of the offence and the culpability of the offender. It considered the applicant's arguments regarding the sentencing judge's failure to adequately account for his early guilty plea and the time spent in pre-sentence custody. The court also evaluated whether the sentence was commensurate with sentences imposed in similar cases.

The appellate court concluded that the sentence was indeed manifestly excessive, as it did not appropriately consider the mitigating factors of the early guilty plea and the pre-sentence custody time. The court found that the reduction made by the sentencing judge was inadequate in light of these factors. Consequently, the court allowed the appeal, reduced the sentence from ten years to nine years, and set aside the automatic serious violent offence declaration. The court also fixed a parole eligibility date of 24 February 2020.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal against sentence allowed.

3. Sentence varied by reducing the 10 years term of imprisonment imposed on Count 1 to 9 years and set aside the automatic serious violent offence declaration.

4. A parole eligibility date of 24 February 2020 be fixed.

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.

Citations

AGLC Citation

R v Carlisle [2017] QCA 258

Most Recent Citation

R v NT [2018] QCA 106

Cases citing this decision · 23 of 23 shown

R v Bornstein
[2024] QSC 270 Para 35

…s 10 years or more. In those circumstances, any mitigating factors must be reflected by a suitable reduction of the head sentence: see R v Carlisle [2017] QCA 258.” [26][2020] QCA 53. [27]At p 7, summarising the approach of Davis J at first instance.…
R v Solway
[2023] QCA 267 Para 31

…In R v Carlisle [2017] QCA 258, Applegarth J, with whom Gotterson and Morrison JJA agreed, considered whether the reduction for a very early plea of guilty and un-declarable pre-sentence custody[35] resulted in a sentence that was manifestly excessive in all of the circumstances. In that case, a sentence of ten y…
R v Campbell
[2022] QCA 135 Para 7

…in respect of the pre-sentence custody. It was submitted that:[32] [28][2018] QCA 106. [29] R v Armitage; R v Armitage; R v Dean [2021] QCA 185. [30][2017] QCA 258. [31][2013] QCA 402. [32]Applicant’s outline paragraphs 13.1- 13.5. (a) NT provides a succinct overview of the general position regarding pre-sentenc…
R v Smith
[2022] QCA 89 Para 38

…appellable error.[19] Avoiding the compulsory 80 per cent non-parole period is a significant advantage.[20] [18]See, for example, R v Carlisle [2017] QCA 258. [19] R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22 at [46]. [20] R v Davenport [2018] QCA 330 at [26].…
R v Yak
[2021] QCA 214 Para 4

…also sentenced for several summary offences with which it is unnecessary to deal. [2] And in accordance with the principle explained in R v Carlisle [2017] QCA 258.…
R v Armitage; R v Armitage; R v Dean
[2021] QCA 185 Para 3

…the applicant would have been eligible to apply for parole after serving 80 per cent of it.”[35] [32] [2013] QCA 402. [33] [2018] QCA 277. [34] [2017] QCA 258. [35] [2013] QCA 402, [16].…
THE QUEEN v LESLIE (a pseudonym)
[2021] QCA 85 Para 15

…violence offence declaration was mandatory and therefore, mitigating circumstances could not be reflected in a recommendation for early parole. [6][2017] QCA 258.…
R v TAS
[2021] QCA 49 Para 25

…4] and R v Luu ,[15] and described the applicant’s case as more serious than them. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
R v TAQ
[2020] QCA 200 Para 16

…to be declared as time already served must be taken into account in fixing the head sentence and the non-parole period, in reliance on R v Carlisle [2017] QCA 258 at [50].…
R v Lawler
[2020] QCA 166 Para 5

…In relation to the question of a serious violent offence declaration, the sentencing judge had regard to the principles explained in R v Carlisle [2017] QCA 258. This case recognised that where a sentence exceeds 10 years, it is not possible to reflect the mitigating circumstances by way of a recommendation for e…
R v Rowland
[2020] QCA 98

…al potential to distract from the applicant’s criminality in the sense that was discussed by Justice Applegarth in R v Carlisle [2017] QCA 258.…
R v Grey
[2020] QCA 77 Para 8

…applicant’s case can be compared. On the basis of those decisions it cannot be said that the sentence imposed here was manifestly excessive. [28][2017] QCA 258 at [93] and [95]. [29][2018] QCA 22 at [37]-[38]. [30][2018] QCA 265 at [30]. [31][2020] QCA 54 at [70]-[73].…
R v Cumner
[2020] QCA 54 Para 11

…n the trafficking was not at the same level as that of the applicant, her guilty plea was timely and she provided a high level of co-operation. [22][2017] QCA 258. [23][2009] QCA 376. [24][2007] QCA 266. [25][2009] QCA 299.…
R v Kirke
[2020] QCA 53 Para 33

…is 10 years or more. In those circumstances, any mitigating factors must be reflected by a suitable reduction of the head sentence: see R v Carlisle [2017] QCA 258. (g)Whilst it is a common sentencing practice where there is a series of offences to select the most serious offence and impose a “global” sentence o…
R v Armitage, Armitage and Dean
[2020] QSC 41

…R [1988] 166 CLR 59, applied R v Bargenquast , Davis and Holmes [2005] QCA 476, distinguished R v Carlisle [2017] QCA 258, applied R v Crawford, Patea, & Patea [2018] QSC 122, distinguished R v Duong , Nguyen, Bui, & Quoc [2002] QCA 151, distinguished R v Geissler, [2019] QCA 63, distinguished R v Huebner [2006]…
R v Delander
[2019] QCA 69 Para 18

…In the case of R v Carlisle [2017] QCA 258 , the Court of Appeal substituted a sentence of nine years for a 10 year sentence, avoiding the automatic operation of the serious violent offender declaration provisions, although the nine year sentence took account of one year of undeclared pre-sentence custody, such t…
R v Dang
[2018] QCA 331 Para 18

…circumstances in which he descended into drug use and drug trafficking, the appropriate sentence was that which he then imposed. [9][2017] QCA 258.…
R v Davenport
[2018] QCA 330 Para 21

…pful description of comparable cases for an offence of trafficking in circumstances such as the present case, which I would readily adopt. [2][2017] QCA 258. [3]Ibid at [34].…
R v Luu
[2018] QCA 281 Para 22

…ears after you went into custody on 20 October 2015, that would be 19 April 2021.” [5]AB 48/23-AB49/11 (emphasis added). [6] R v Carlisle [2017] QCA 258.…
R v Collins
[2018] QCA 277 Para 3

…ligible for parole.[114] On that basis his parole eligibility would have arisen after he had served eight years and five months. [113] R v Carlisle [2017] QCA 258 at [46]. [114] Corrective Services Act 2006 (Qld), s 182.…
R v NT
[2018] QCA 106 Para 27

…declarable under s 159A of the Penalties and Sentences Act 1992 (Qld) at the first opportunity.” [3]Gotterson and Morrison JJA concurring. [4][2017] QCA 258 at [46].…
R v Randall
[2018] QSC 100

…1 November 2017, cited R v Amato [2013] QCA 158, cited R v Assurson (2007) 174 A Crim R 78, cited R v Bojovic [2000] 2 Qd R 183, cited R v Carlisle [2017] QCA 258, cited R v Chard; ex parte Attorney-General [2004] QCA 372, cited R v Everleigh [2003] 1 Qd R 398, cited R v Goodwin; ex parte Attorney-General (2014)…
Reid v Commissioner of Police
[2018] QDC 83 Para 1

…e sentence will be reduced by up to 30 per cent for such a plea.[14] [14] R v Houghton [2002] QCA 159 at [31]; R v Amato [2013] QCA 158; R v Carlisle [2017] QCA 258 at [112].…

View all 23 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Houkamau
[2016] QCA 328 Para 7

…. As R v Houkamau [11] illustrates, in arriving at the sentence, account is taken of the pre-sentence custody in full. It is not doubled. [11][2016] QCA 328.…
R v Jacobs
[2016] QCA 28 Para 2

…rug debts and that he offended whilst subject to suspended terms of imprisonment. The terms of imprisonment were not disturbed on appeal. [17][2016] QCA 28.…
R v Gordon
[2016] QCA 10 Para 2

…tication to the business, including operating laboratories, using couriers and employing others. The application for leave to appeal was refused. [19][2016] QCA 10.…
R v Barker
[2015] QCA 215 Para 1

…uding that the sentence was manifestly excessive. The Court found that the sentence was not manifestly excessive and the application was refused. [18][2015] QCA 215.…
R v Kaq; R v Kaq; Ex parte Attorney-General (Qld)
[2015] QCA 98 Para 2

…ite different and had the added feature of a sentence that was affected by the operation of s 13A of the Penalties and Sentences Act 1992 (Qld). [1][2015] QCA 98.…
R v Milos
[2014] QCA 314 Para 2

…ed trafficking whilst on bail, did not enter a plea of guilty and offered no cooperation or contrition, this Court dismissed the application. [20][2014] QCA 314.…
R v Versac
[2014] QCA 181 Para 6

…levant criminal history. The application for an extension of time within which to apply for leave to appeal against his sentence was refused. [27][2014] QCA 181.…
R v Raciti
[2004] QCA 359 Para 7

…es to sustain the effective sentence in this case were more serious, involving either principals or sentences after trial, or both. [28] R v Raciti [2004] QCA 359.…
R v Markovski
[2009] QCA 299 Para 4

…Markovski was not entitled to the benefit of a plea of guilty and the application for leave to appeal against sentence was refused. [22][2009] QCA 299. [23]At [53].…
R v Westphal
[2009] QCA 223 Para 9

…ant’s conduct was any worse than the conduct of Westphal and, as noted, unlike Westphal, there is no evidence of an unexplained income. [34][2009] QCA 223. [35]At [12] and [63] – [64]. [36] Westphal at [40].…
R v Fabre
[2008] QCA 386 Para 3

…fendant was required to serve in custody before being eligible for parole by a period close to the 344 days then spent on remand. [4] R v Fabre [2008] QCA 386 at [14]. [5][1999] 2 Qd R 97. [6][2008] QCA 386.…
R v Chen
[2008] QCA 332 Para 5

…utomatically attract a serious violent offence declaration. [31] KAQ at [55](b). I note that in regard to R v Markovski there was not a plea. [32][2008] QCA 332.…
R v. Nabhan ; R v Kostopoulos
[2007] QCA 266 Para 3

…isonment. Both defendants appealed on the grounds that their sentences were manifestly excessive. Both applications were refused. [21][2007] QCA 266.…
R v Gibb
[2007] QCA 26 Para 2

…sands of dollars with a subordinate of a different operation who is paid very little or an uncertain amount? [29] R v Nabhan; R v Kostopoulos [2007] QCA 26 at [18].…
Markarian v The Queen
[2005] HCA 25

…xcessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 13A, s 159A Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Barker [2015] QCA 215, cited R v Bradforth [2003] QCA 183, cited R v Chen [2008] QCA 332, cited R v Fabre [2008] QCA 386, cited R v Gordon [2016] QCA 10, cite…
R v Rizk
[2004] QCA 382 Para 10

…Raciti to traffic. However, the case remains instructive as to a sentence for a subordinate in a smaller scale drug trafficking operation. [37][2004] QCA 382. [38]See R v Raciti [2004] QCA 359.…
R v Bradforth
[2003] QCA 183 Para 8

…who was 24 to 25 years old, with a significant criminal history and who was in business on his own account. He was not an addict but a drug user. [33][2003] QCA 183.…
R v Skedgwell
[1998] QCA 93

…Kostopoulos [2007] QCA 266, cited R v Raciti [2004] QCA 359, cited R v Rizk [2004] QCA 382, cited R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited R v Versac [2014] QCA 181, cited R v Westphal [2009] QCA 223, cited R v Wishart and Jenkins [1994] 2 Qd R 421; [1993] QCA 563, cited COUNSEL: P Davis QC, with A J…
R v Wishart and Jenkins
[1993] QCA 563

…998] QCA 93, cited R v Versac [2014] QCA 181, cited R v Westphal [2009] QCA 223, cited R v Wishart and Jenkins [1994] 2 Qd R 421; [1993] QCA 563, cited COUNSEL: P Davis QC, with A J Kimmins, for the applicant G J Cummings for the respondent SOLICITORS: Grigor Lawyers for the applicant Director of Public Prosecuti…
R v Marshall
[1992] QCA 155

…y-General (Qld) (2015) 253 A Crim R 201; [2015] QCA 98, cited R v Markovski [2009] QCA 299, cited R v Marshall [1993] 2 Qd R 307; [1992] QCA 155, cited R v Milos [2014] QCA 314, cited R v Nabhan; R v Kostopoulos [2007] QCA 266, cited R v Raciti [2004] QCA 359, cited R v Rizk [2004] QCA 382, cited R v Skedgwell [1…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
13A 2 mentions (from Para 1)
Corrective Services Act 1988 (Qld)
1 mention (from Para 6)

CITATION:	R v Carlisle [2017] QCA 258
PARTIES:	R v CARLISLE, Nathan (applicant)
FILE NO/S:	CA No 55 of 2017 SC No 1038 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 2 March 2017 (Daubney J)
DELIVERED ON:	3 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2017
JUDGES:	Gotterson and Morrison JJA and Applegarth J
ORDERS:	1. Leave to appeal granted. 2. Appeal against sentence allowed. 3. Sentence varied by reducing the 10 years term of imprisonment imposed on Count 1 to 9 years and set aside the automatic serious violent offence declaration. 4. A parole eligibility date of 24 February 2020 be fixed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to ten years’ imprisonment for drug trafficking – where the applicant submits that the nominal sentence adopted by the sentencing judge was manifestly excessive and did not reflect the criminality of the offending – where the applicant submits the reduction of two years from the nominal sentence of 12 years’ imprisonment was a manifestly inadequate reduction for his very early guilty plea and the one year served in pre-sentence custody – whether the sentence was manifestly excessive in all the circumstances Penalties and Sentences Act 1992 (Qld), s 13A, s 159A Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Barker[2015] QCA 215, cited R v Bradforth[2003] QCA 183, cited R v Chen[2008] QCA 332, cited R v Fabre[2008] QCA 386, cited R v Gordon[2016] QCA 10, cited R v Houkamau[2016] QCA 328, cited R v Jacobs[2016] QCA 28, cited R vKAQ; R v KAQ; Ex parte Attorney-General (Qld) (2015) 253 A Crim R 201; [2015] QCA 98, cited R v Markovski[2009] QCA 299, cited R v Marshall [1993] 2 Qd R 307; [1992] QCA 155, cited R v Milos[2014] QCA 314, cited R v Nabhan; R v Kostopoulos[2007] QCA 266, cited R v Raciti[2004] QCA 359, cited R v Rizk[2004] QCA 382, cited R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93, cited R v Versac[2014] QCA 181, cited R v Westphal[2009] QCA 223, cited R v Wishartand Jenkins [1994] 2 Qd R 421; [1993] QCA 563, cited
COUNSEL:	P Davis QC, with A J Kimmins, for the applicant G J Cummings for the respondent
SOLICITORS:	Grigor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent