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R v Cifuentes

R v Cifuentes

Case [2006] QCA 566 22 December 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Cifuentes [2006] QCA 566

PARTIES:

R
v
CIFUENTES, Michael Angel
(applicant)

FILE NO/S:

CA No 281 of 2006
DC No 478 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

22 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2006

JUDGES:

Jerrard and Holmes JJA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

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 REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – applicant pleaded guilty to two counts of demanding property with threats – applicant was sentenced to three and a half years imprisonment – applicant was a police officer – applicant threatened that complainant’s children would be removed and his assets confiscated – applicant denied guilt until he had seen the strong evidence against him – whether sentence was manifestly excessive in all the circumstances

Criminal Code 1899 (Qld), s 415

R v Amery [1999] QCA 236; CA No 119 of 1999, 18 June 1999, considered

R v Campbell [1997] QCA 127; CA No 379 of 1996, 16 May 1997, considered

R v Coleman [1995] QCA 549; CA Nos 343 of 1995, 344 of 1995, 2 October 1995, considered

R v Drinkwater [2006] QCA 82; CA No 216 of 2005, 22 March 2006, considered

R v Gardiner (unreported, Queensland Court of Criminal Appeal, CA No 159 of 1981, 16 September 1981), considered

R v Gardner [1997] QCA 292; CA No 248 of 1997, 7 August 1997, considered

R v Johnson and Edwards [1981] Qd R 440, considered

R v K J Johnson (unreported, Queensland Court of Criminal Appeal, CA No 317 of 1981, 3 March 1982), considered

R v Marriner [2006] QCA 32; CA No 191 of 2005, 17 February 2006, considered

R v Renwick (unreported, Court of Criminal Appeal, CA No 244 of 1991, 14 November 1991), considered

R v Shambrook [1997] QCA 356; CA No 359 of 1996, 21 October 1997, considered

R v Smith [1997] QCA 109; CA No 566 of 1996, 9 May 1997, considered

R v Stokes (unreported, Court of Criminal Appeal, CA No 179 of 1993, 22 November 1993), considered

R v Stratton [1992] QCA 102, considered

COUNSEL:

T J Kimmins for the applicant
R G Martin SC for the respondent

SOLICITORS:

Mellick Smith & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 5 September 2006 Michael Cifuentes pleaded guilty in the Cairns District Court to two counts of demanding property with threats, contrary to s 415 of the Criminal Code 1899 (Qld), and was sentenced to three and a half years imprisonment. The learned sentencing judge did…

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 Cifuentes

Details

AGLC: R v Cifuentes [2006] QCA 566
Case: [2006] QCA 566
Decision Date: 22 December 2006

CaseChat Overview and Summary

The case of R v Cifuentes involved a former police officer who had pleaded guilty to two counts of demanding property with threats. The applicant had threatened that the complainant's children would be removed and his assets confiscated. The applicant denied his guilt until he had seen the strong evidence against him. The court sentenced him to three and a half years imprisonment. The applicant appealed against the sentence, arguing that it was manifestly excessive in all the circumstances. The court was required to decide whether the sentence was manifestly excessive and whether the applicant was entitled to a reduction in sentence.

The court considered the relevant principles of sentencing and examined the particular circumstances of the case. It found that the applicant's position as a police officer was a significant aggravating factor, as was the fact that he had abused his position of authority to commit the offences. The court also considered the seriousness of the offences and the need to deter similar conduct in the future. The court concluded that the sentence was not manifestly excessive and that the applicant was not entitled to a reduction in sentence.

The applicant's application for leave to appeal against the sentence was refused. The court found that the sentence was appropriate in all the circumstances and that there were no grounds for interference. The court emphasised the importance of maintaining public confidence in the justice system and the need to deter police officers from abusing their position of authority. The court also noted that the applicant had shown no remorse for his conduct and had denied his guilt until he had seen the evidence against him.

No orders were made. The applicant's application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence 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

Full text does not contain this section.

Citations

AGLC Citation

R v Cifuentes [2006] QCA 566

Most Recent Citation

R v Silasack [2009] QCA 88

Cases citing this decision · 12 of 12 shown

R v Keogh
[2019] QCA 173 Para 25

…ery serious Parliament considers the offence of extortion. As I indicated in the submissions that were made to me, in the decision of R v Cifuentes [2006] QCA 566 Justice Jerrard said after a review of comparable decisions that, “It is very difficult to avoid a prison sentence for extortion and that the deterrent…
R v Thomsen
[2018] QCA 220 Para 27

…erty. No weapons were presented. The time period of the offending was quite limited and no significant planning or organisation was involved.[14] [13][2006] QCA 566 at [29]. [14]AOS at [40].…
R v Dean; R v Murphy; R v Jaffe
[2017] QCA 276 Para 17

…as difficult to avoid and that other matters tending to require the imposition of substantial sentences of imprisonment included:[14] [12][2006] QCA 566. [13] R v Cifuentes [2006] QCA 566 at [29]. [14] R v Cifuentes [2006] QCA 566 at [29]. (a)the offender used violence to the victim, or damaged the victim’s prope…
R v Chang-Time
[2017] QCA 92 Para 46

…ill generally involve a period of imprisonment because the deterrent element of sentencing is of particular importance. This is undoubtedly right. [2][2006] QCA 566.…
R v Rae
[2016] QCA 228 Para 2

…n charge, would be an effective global sentence of between five and six years imprisonment with parole eligibility after 20 to 24 months. [12][2006] QCA 566.…
R v Cockburn (No 2)
[2015] ACTSC 337 Para 1

…ncing remarks in those cases, and which I read, to other decisions in other jurisdictions. These, together with some others I read, are R v Cifuentes [2006] QCA 566; R v Lewis [2007] VSCA 24; Marcus v The Queen [2007] NSWCCA 229; R v Taouk [2012] QCA 211 and Manisco v Western Australia (No 2) [2013] WASCA 190.…
Manisco v The State of Western Australia [No 2]
[2013] WASCA 190

…Australia [2012] WASCA 175 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fogg v The State of Western Australia [2011] WASCA 11 R v Cifuentes [2006] QCA 566 R v Girdardo [2012] QCA 166 R v Taouk [2012] QCA 211 R v Wilhelm (1988) 39 A Crim R 469 Skipworth v The State of Western Australia [2008] WASCA 64 Th…
Barry v The State of Western Australia
[2012] WASCA 175 Para 6

…a State appeal. In his reasons, Pullin JA reviewed the reported cases in this State involving offences of this kind and, in addition, R v Cifuentes [2006] QCA 566 and the cases considered there. His Honour concluded that the usual pre‑transitional sentence range was 3 to 6 years' imprisonment, which equates to a…
R v Taouk
[2012] QCA 211 Para 1

…e in prison as a result of his being a police officer, a sentence of about four and a half years imprisonment would have been appropriate. [6][2006] QCA 566.…
R v Girardo & Michaelides
[2012] QCA 166 Para 1

…It was submitted for Mr Girardo that the decision in R v Cifuentes [8] demonstrated that a range not exceeding four years was appropriate. [8][2006] QCA 566.…
R v Silasack
[2009] QCA 88 Para 1

…In relation to the offences of dishonesty, the applicant's counsel referred to R v Myles [2006] QCA 566, R v Vinson [2002] QCA 379 and R v Robinson; ex parte A-G (Qld) [2004] QCA 169. In R v Robinson , McMurdo P analysed comparable decisions involving misappropriation over a nine year period up to R v Vinson in w…
The State of Western Australia v Amoore
[2008] WASCA 65 Para 2

…The State referred only to a Queensland case R v Cifuentes [2006] QCA 566 which reviewed numerous authorities relating to the ranges of sentences imposed for the crime of 'extortion and associated crimes' in Queensland. No cases dealing with extortion in this State were referred to and no cases dealing with robbe…

View all 12 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Marriner
[2006] QCA 32 Para 1

…months. He referred this Court to many sentences imposed for similar offences, including sentences involving police officers. Those were R v Marriner [2006] QCA 32, [1] R v Smith [1997] QCA 109, [2] and the decision in New South Wales of R v O’Mally [2005] NSW CCA 166.[3] [1]CA No 191 of 2005, 17 February 2006.…
R v Drinkwater
[2006] QCA 82 Para 1

…Finally, in R v Drinkwater [2006] QCA 82,[11] that applicant’s sentence of six years imprisonment, imposed after a trial, was upheld by this Court. He had demanded $50,000 from the victim, and was apparently acting for business associates of the victims in making that demand. He had no criminal record and a good…
R v M
[2004] QCA 184 Para 1

…In R v Marriner (earlier reported in the appeal against conviction as R v M [2004] QCA 184 [4] ) that offender, who had been a uniformed police officer, was convicted after a trial of the commission of attempted extortion and some 13 other offences, the latter being committed over a period of some 18 years. Those…
R v Amery
[1999] QCA 236 Para 1

…A much lesser sentence was imposed in R v Amery [1999] QCA 236, [7] where that offender pleaded guilty to one offence of extortion and was sentenced to one year’s imprisonment. She was a 33 year old prostitute, who threatened an ex-client, demanding $2,000 from him; the threat was that she would tell police he wa…
R v Shambrook
[1997] QCA 356 Para 1

…In R v Shambrook [1997] QCA 356 [9] this Court upheld a sentence of three years imposed after a trial on six counts of extortion, and one of wilful damage. That applicant had been engaged for $2,000 to approach and threaten a businessman, with the object of having the businessman cause warrants of execution to be…
R v Gardner
[1997] QCA 292 Para 1

…In R v Gardner [1997] QCA 292, [6] that offender pleaded guilty to four counts of extortion, and this Court upheld a sentence of three years, suspended after serving one. He had impersonated a police officer and threatened victims with arrest in public toilets, if they did not give him money. One victim paid him…
R v Campbell
[1997] QCA 127 Para 1

…In R v Campbell [1997] QCA 127[10] this Court dismissed an application for leave to appeal from a sentence of three years imprisonment suspended after four months with an operational period of five years. Those sentences were imposed after a trial; that applicant had essentially helped a co-offender, who had inst…
R v Smith
[1997] QCA 109 Para 1

…t to many sentences imposed for similar offences, including sentences involving police officers. Those were R v Marriner [2006] QCA 32, [1] R v Smith [1997] QCA 109, [2] and the decision in New South Wales of R v O’Mally [2005] NSW CCA 166.[3] [1]CA No 191 of 2005, 17 February 2006. [2]CA No 566 of 1996, 9 May 19…
R v Stratton
[1992] QCA 102 Para 1

…In R v Stratton [1992] QCA 102 that offender pleaded guilty to four counts of extortion committed against one victim, a businessman known to the offender, and to whose wife the offender had threatened to publish a videotape of the victim involved in a sexual encounter with an accomplice of the offender. The offen…
QCA 566, considered R v Coleman
[1995] QCA 549 Para 1

…Finally, Mr Kimmins took the Court to some matters where attempts had been made to extort money from varieties of business associates. In R v Coleman [1995] QCA 549 [8] that applicant had pleaded guilty to an offence of extortion with a circumstance of aggravation, and been sentenced to imprisonment for five year…

Legislation cited in this decision · 1

Police Act 1990 (NSW)
1 mention (from Para 1)

CITATION:	R v Cifuentes [2006] QCA 566
PARTIES:	R v CIFUENTES, Michael Angel (applicant)
FILE NO/S:	CA No 281 of 2006 DC No 478 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	22 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2006
JUDGES:	Jerrard and Holmes JJA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
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 REFUSED – PARTICULAR OFFENCES – OTHER OFFENCES – applicant pleaded guilty to two counts of demanding property with threats – applicant was sentenced to three and a half years imprisonment – applicant was a police officer – applicant threatened that complainant’s children would be removed and his assets confiscated – applicant denied guilt until he had seen the strong evidence against him – whether sentence was manifestly excessive in all the circumstances Criminal Code 1899 (Qld), s 415 R v Amery [1999] QCA 236; CA No 119 of 1999, 18 June 1999, considered R v Campbell [1997] QCA 127; CA No 379 of 1996, 16 May 1997, considered R v Coleman [1995] QCA 549; CA Nos 343 of 1995, 344 of 1995, 2 October 1995, considered R v Drinkwater [2006] QCA 82; CA No 216 of 2005, 22 March 2006, considered R v Gardiner (unreported, Queensland Court of Criminal Appeal, CA No 159 of 1981, 16 September 1981), considered R v Gardner [1997] QCA 292; CA No 248 of 1997, 7 August 1997, considered R v Johnson and Edwards [1981] Qd R 440, considered R v K J Johnson (unreported, Queensland Court of Criminal Appeal, CA No 317 of 1981, 3 March 1982), considered R v Marriner [2006] QCA 32; CA No 191 of 2005, 17 February 2006, considered R v Renwick (unreported, Court of Criminal Appeal, CA No 244 of 1991, 14 November 1991), considered R v Shambrook [1997] QCA 356; CA No 359 of 1996, 21 October 1997, considered R v Smith [1997] QCA 109; CA No 566 of 1996, 9 May 1997, considered R v Stokes (unreported, Court of Criminal Appeal, CA No 179 of 1993, 22 November 1993), considered R v Stratton [1992] QCA 102, considered
COUNSEL:	T J Kimmins for the applicant R G Martin SC for the respondent
SOLICITORS:	Mellick Smith & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent