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R v Carrall

R v Carrall

Case [2018] QCA 355 18 December 2018

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Carrall [2018] QCA 355

PARTIES:

R
v
CARRALL, Brent Gregory
(applicant)

FILE NO/S:

CA No 275 of 2017
SC No 1626 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 20 November 2017 (Lyons SJA)

DELIVERED ON:

18 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2018

JUDGES:

Sofronoff P and Jackson and Bowskill JJ

ORDER:

Leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs, one count of possessing things used in connection with trafficking and one count of supplying a dangerous drug – where the applicant was sentenced to 10 years imprisonment on the trafficking count and not further punished on the other two counts – where the applicant’s sentence on the trafficking count carried with it an automatic serious violent offender declaration – where there was a dispute between the applicant and respondent at first instance as to the quantity of drugs carried by couriers on behalf of the applicant and the role that the applicant played in the trafficking operation – where evidence was led by the respondent from two of the applicant’s accomplices – whether there was no evidence to support the learned sentencing judge’s factual findings or the fact finding process involved a material error of law

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant submits that the imposition of a sentence of 10 years imprisonment on the trafficking count, which carried with it an automatic serious violent offender declaration, was manifestly excessive – where the applicant submits that the learned sentencing judge failed to take into account his steps towards rehabilitation – whether the sentencing discretion miscarried

Evidence Act 1977 (Qld), s 132C

Carroll v The Queen [2011] VSCA 150, cited
R v Abbott[2017] QCA 57, cited
R v B; Ex parte Attorney-General (Qld) (2000) 110 A Crim R 499; [2000] QCA 110, cited
R v Cooney; Ex parte Attorney-General (Qld)[2008] QCA 414, cited
R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, cited
R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited
R v Feakes[2009] QCA 376, cited
R v Herford (2001) 119 A Crim R 546; [2001] QCA 177, cited
R v Johnson[2014] QCA 79, cited
R v O’Donoghue (1988) 34 A Crim R 397, cited
Willis v The Queen (2016) 261 A Crim R 151; [2016] VSCA 176, cited

COUNSEL:

A J Kimmins for the applicant
C N Marco for the respondent

SOLICITORS:

Rostron Carlyle Rojas Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: The applicant pleaded guilty to…

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 Carrall

Details

AGLC: R v Carrall [2018] QCA 355
Case: [2018] QCA 355
Decision Date: 18 December 2018

CaseChat Overview and Summary

In the case of R v Carrall, the applicant appealed against his sentence, arguing that the sentence imposed was manifestly excessive and that the sentencing judge had acted on the wrong principle by failing to consider his steps towards rehabilitation. The applicant had pleaded guilty to one count of trafficking in dangerous drugs, one count of possessing things used in connection with trafficking, and one count of supplying a dangerous drug. He was sentenced to 10 years imprisonment on the trafficking count, with no further punishment on the other two counts. The sentence carried with it an automatic serious violent offender declaration.

The legal issues in the case centered on whether there was no evidence to support the learned sentencing judge's factual findings or whether the fact-finding process involved a material error of law. The applicant submitted that the 10-year sentence, which carried with it an automatic serious violent offender declaration, was manifestly excessive. The applicant also argued that the learned sentencing judge failed to take into account his steps towards rehabilitation, which would have been a mitigating factor in sentencing.

The court found that there was no material error in the learned sentencing judge's fact-finding process, and that there was evidence to support the judge's findings. The court also found that the sentence was not manifestly excessive, and that the learned sentencing judge had considered the applicant's steps towards rehabilitation in imposing sentence. The appeal against sentence was dismissed, and leave to appeal was refused.

Orders

Orders of the court

Leave to appeal 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

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Citations

R v Carrall [2018] QCA 355

Most Recent Citation

R v Strbak [2019] QCA 42

Cases Citing This Decision

DU v Jackson (DCJ) [2024] QCA 122
Citation 1 (Para 18)

…t was cited in the dissenting judgment of Jagot J in Stanley v DPP (2023) 407 ALR 222, [144]. [26]I note, in passing, that dicta in R v Carrall [2018] QCA 355, [14], is inaccurate in describing an appeal in the strict sense. This was recognised and discussed in R v MDU [2024] QCA 113. See also Halsbury’s Laws of…
R v MDU [2024] QCA 113
Citation 2 (Para 4)

…in particular paragraph [14] of that decision, and as to the difference between an appeal in the strict sense and an appeal by way of rehearing. [27][2018] QCA 355.…
R v Kulatunge [2023] QCA 252
Citation 3 (Para 10)

…ved that s 132C is concerned with allegations of fact, the onus of proof of which necessarily rests with the prosecution: R v Carrall [2018] QCA 355. The sentencing judge may act on an allegation of fact that is admitted or not challenged, but he or she is not obliged to do so. Where an allegation of fact is not…
R v Hilton [2021] QCA 286
Citation 4 (Para 2)

…, even for a period approaching six months, warrants a sentence of imprisonment in the order of 10 years. [19] R v Johnson [2014] QCA 79; R v Carroll [2018] QCA 355.…
R v RBE [2021] QCA 146
Citation 5 (Para 3)

…t is to be observed that s 132C is concerned with allegations of fact, the onus of proof of which necessarily rests with the prosecution: R v Carrall [2018] QCA 355, [9]. The sentencing judge may act on an allegation of fact that is admitted or not challenged, but he or she is not obliged to do so. Where an alleg…
Duong v The Queen [2021] NTCCA 3
Citation 6 (Para 10)

…[12] R v Carrall [2018] QCA 355 at [10] per Sofronoff P with whom Jackson and Bowskill JJ agreed.…
R v Mills [2021] QCA 59
Citation 7 (Para 1)

…one of counsel on behalf of the respondent relied on the approach to an appeal against a sentencing judge’s findings of fact set out in R v Carrall [2018] QCA 355 at [10]. Neither party sought to make submissions on the question left open in R v Strbak [2019] QCA 42 at [21]-[29], as to whether the nature of an ap…
R v Lowien [2020] QCA 186
Citation 8 (Para 23)

…[2019] QCA 69. [3][2018] QCA 341. [4][2018] QCA 281. [5][2018] QCA 22. [6][2004] QCA 306. [7][2014] QCA 264. [8][2015] QCA 34. [9][2018] QCA 331. [10][2018] QCA 355.…
Norris v The Queen [2020] NTCCA 8
Citation 9

…A 7, Noakes v The Queen [2015] NTCCA 7, R v B; ex parte A-G [2000] QCA 110, R v Bojovic [1999] QCA 206, R v Carrall [2018] QCA 355, R v Crossley [1999] QCA 223, R v Indrikson [2014] NTCCA 10, R v Olbrich (1999) 199 CLR 270, Sultana (1994) 74 A Crim R 27, The Queen v Falzon (2018) 92 ALJR 701, The Queen v Kilic (2…
R v Cumner [2020] QCA 54
Citation 10 (Para 20)

…terfere with the sentencing judge’s finding of fact.[33] [32]See Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363. [33] R v Carrall [2018] QCA 355 at [9]-[11].…
High Court Bulletin [2019] HCAB 6
Citation 11

…Supreme Court of Queensland (Court of Appeal) [2018] QCA 355…
R v Ta [2019] QCA 53
Citation 12 (Para 20)

…duct of legal error.[20] Here, there was evidence to support the challenged finding and no material error of law was involved in making it.[21] [19][2018] QCA 355 per Sofronoff P at [10], [14]. [20]Respondent’s Outline of Submissions (“ROS”) paragraphs 3, 4. [21]Ibid paragraph 5.…
R v Strbak [2019] QCA 42
Citation 13 (Para 21)

…or reasonably open”. In my respectful view however, the scope for this Court’s interference with a factual finding may be more extensive. [21][2018] QCA 355 at [10] per Sofronoff P with whom Jackson and Bowskill JJ agreed.…

See all citing cases →

Cases Cited

R v Abbott [2017] QCA 57
Citation 1 (Para 16)

…ent with previous sentences that it should be regarded as the product of some undetectable error in the exercise of discretion. [2][2008] QCA 414. [3][2017] QCA 57. [4][2009] QCA 376. [5][2014] QCA 79.…
Willis v The Queen [2016] VSCA 176
Citation 2

…] QCA 79 , cited R v O’Donoghue (1988) 34 A Crim R 397, cited Willis v The Queen (2016) 261 A Crim R 151; [2016] VSCA 176, cited COUNSEL: A J Kimmins for the applicant C N Marco for the respondent SOLICITORS: Rostron Carlyle Rojas Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respo…
R v Johnson [2014] QCA 79
Citation 3 (Para 16)

…hould be regarded as the product of some undetectable error in the exercise of discretion. [2][2008] QCA 414. [3][2017] QCA 57. [4][2009] QCA 376. [5][2014] QCA 79.…
Carroll v The Queen [2011] VSCA 150
Citation 4 (Para 10)

…findings of fact unless it concludes that the finding was not reasonably open or that it was the product of legal error.[1] [1] Carroll v The Queen [2011] VSCA 150 at [16]-[18] per Maxwell P with whom Buchanan JA agreed; Willis v The Queen (2016) 261 A Crim R 151 at [94]–[101] per Weinberg and Beach JJA; R v O’Don…
R v Feakes [2009] QCA 376
Citation 5 (Para 16)

…sentences that it should be regarded as the product of some undetectable error in the exercise of discretion. [2][2008] QCA 414. [3][2017] QCA 57. [4][2009] QCA 376. [5][2014] QCA 79.…
R v Cooney; Ex parte Attorney-General (Qld) [2008] QCA 414
Citation 6 (Para 16)

…ed was so inconsistent with previous sentences that it should be regarded as the product of some undetectable error in the exercise of discretion. [2][2008] QCA 414. [3][2017] QCA 57. [4][2009] QCA 376. [5][2014] QCA 79.…
R v Cowie [2005] QCA 223
Citation 7

…110 , cited R v Cooney; Ex parte Attorney-General (Qld) [2008] QCA 414 , cited R v Cowie [2005] 2 Qd R 533; [2005] QCA 223 , cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223 , cited R v Feakes [2009] QCA 376 , cited R v Herford (2001) 119 A Crim R 546; [2001] QCA 177 , cited R v Johnson [2014] QCA 79 , c…
R v Herford [2001] QCA 177
Citation 8

…A Crim R 80; [1999] QCA 223 , cited R v Feakes [2009] QCA 376 , cited R v Herford (2001) 119 A Crim R 546; [2001] QCA 177 , cited R v Johnson [2014] QCA 79 , cited R v O’Donoghue (1988) 34 A Crim R 397, cited Willis v The Queen (2016) 261 A Crim R 151; [2016] VSCA 176, cited COUNSEL: A J Kimmins for the applican…
R v B; ex parte A-G [2000] QCA 110
Citation 9

…150, cited R v Abbott [2017] QCA 57 , cited R v B; Ex parte Attorney-General (Qld) (2000) 110 A Crim R 499; [2000] QCA 110 , cited R v Cooney; Ex parte Attorney-General (Qld) [2008] QCA 414 , cited R v Cowie [2005] 2 Qd R 533; [2005] QCA 223 , cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223 , cited R v…
R v Crossley [1999] QCA 223
Citation 10

…8] QCA 414 , cited R v Cowie [2005] 2 Qd R 533; [2005] QCA 223 , cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223 , cited R v Feakes [2009] QCA 376 , cited R v Herford (2001) 119 A Crim R 546; [2001] QCA 177 , cited R v Johnson [2014] QCA 79 , cited R v O’Donoghue (1988) 34 A Crim R 397, cited Willis v T…

Legislation Cited

Evidence Act 1977 (Qld) 132C
2 mentions (from Para 2)

CITATION:	R v Carrall [2018] QCA 355
PARTIES:	R v CARRALL, Brent Gregory (applicant)
FILE NO/S:	CA No 275 of 2017 SC No 1626 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 20 November 2017 (Lyons SJA)
DELIVERED ON:	18 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2018
JUDGES:	Sofronoff P and Jackson and Bowskill JJ
ORDER:	Leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs, one count of possessing things used in connection with trafficking and one count of supplying a dangerous drug – where the applicant was sentenced to 10 years imprisonment on the trafficking count and not further punished on the other two counts – where the applicant’s sentence on the trafficking count carried with it an automatic serious violent offender declaration – where there was a dispute between the applicant and respondent at first instance as to the quantity of drugs carried by couriers on behalf of the applicant and the role that the applicant played in the trafficking operation – where evidence was led by the respondent from two of the applicant’s accomplices – whether there was no evidence to support the learned sentencing judge’s factual findings or the fact finding process involved a material error of law CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant submits that the imposition of a sentence of 10 years imprisonment on the trafficking count, which carried with it an automatic serious violent offender declaration, was manifestly excessive – where the applicant submits that the learned sentencing judge failed to take into account his steps towards rehabilitation – whether the sentencing discretion miscarried Evidence Act 1977 (Qld), s 132C Carroll v The Queen [2011] VSCA 150, cited R v Abbott[2017] QCA 57, cited R v B; Ex parte Attorney-General (Qld) (2000) 110 A Crim R 499; [2000] QCA 110, cited R v Cooney; Ex parte Attorney-General (Qld)[2008] QCA 414, cited R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, cited R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited R v Feakes[2009] QCA 376, cited R v Herford (2001) 119 A Crim R 546; [2001] QCA 177, cited R v Johnson[2014] QCA 79, cited R v O’Donoghue (1988) 34 A Crim R 397, cited Willis v The Queen (2016) 261 A Crim R 151; [2016] VSCA 176, cited
COUNSEL:	A J Kimmins for the applicant C N Marco for the respondent
SOLICITORS:	Rostron Carlyle Rojas Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent