R v Civcija - [2018] QCA 83

SUPREME COURT OF QUEENSLAND

CITATION:

R v Civcija [2018] QCA 83

PARTIES:

R
v
CIVCIJA, Mato
(applicant)

FILE NO/S:

CA No 108 of 2017
SC No 987 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 28 April 2017 (Burns J)

DELIVERED ON:

Date of Order: 9 February 2018
Date of Publication of Reasons: 4 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2018

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDER:

Date of Order: 9 February 2018

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant pleaded guilty to one count of trafficking cannabis – where the applicant was sentenced to eight years imprisonment with parole eligibility after two years and nine months – where the applicant’s trafficking had been associated with the major trafficking business of Terrence and Joshua Thornbury – where a sentence of 10 years imprisonment was imposed on both Terrence and Joshua Thornbury for trafficking cannabis – where five couriers who were employed by the Thornbury brothers were sentenced for their involvement in the trafficking operation – where the sentences imposed on the couriers ranged from four years imprisonment fully suspended to six years imprisonment – where the couriers were sentenced for different crimes that arose in different ways from the applicant’s offending, albeit as part of the same trafficking enterprise – whether the sentence imposed on the applicant was not in parity with the sentences imposed on the couriers

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where at first instance it was submitted on behalf of the applicant that he should serve a term of imprisonment of between seven and eight years – where on appeal it was submitted that the Court should substitute a term of seven years imprisonment for the eight years imprisonment imposed at first instance – where the applicant cited no comparable cases on appeal to demonstrate that the sentence imposed was excessive in the circumstances of his case – whether the sentence imposed on the applicant was manifestly excessive

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v Thornbury[2017] QCA 283, considered
R v Thornbury[2017] QCA 284, considered
R v Walsh[2008] QCA 391, applied

COUNSEL:

S G Bain for the applicant
J A Wooldridge for the respondent

SOLICITORS:

A W Bale & Son for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: This is an application for leave to appeal against sentence.
The applicant pleaded guilty to one count of trafficking cannabis between 2 April 2013 and 16 April 2014. His acts of trafficking had been associated with…

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 Civcija

Details

AGLC: R v Civcija [2018] QCA 83
Case: [2018] QCA 83
Decision Date: 4 May 2018

CaseChat Overview and Summary

The matter before the court was an application by the applicant, Civcija, to appeal against his sentence. Civcija had pleaded guilty to one count of trafficking cannabis and was sentenced to eight years imprisonment, with parole eligibility after two years and nine months. The court was asked to consider whether the sentence was disproportionate when compared to sentences imposed on co-offenders involved in the same trafficking operation. Terrence and Joshua Thornbury, who were associated with the applicant's trafficking, received sentences of 10 years imprisonment. Additionally, five couriers employed by the Thornbury brothers received sentences ranging from four years imprisonment fully suspended to six years imprisonment for their involvement in the trafficking operation.

The court identified two primary issues to be decided. First, whether the sentence imposed on Civcija was not in parity with the sentences imposed on the couriers. Second, whether the sentence imposed on Civcija was manifestly excessive. The court considered the submissions that the applicant should have served a term of imprisonment between seven and eight years, and that the sentence imposed was excessive in light of the sentences given to the couriers. The court noted that the applicant had not cited comparable cases to support his argument that the sentence was excessive.

In considering the application, the court found that the sentence imposed on Civcija was not manifestly excessive. The court noted that the sentences of the co-offenders were not directly comparable due to differences in the nature of their crimes and the roles they played in the trafficking operation. The court held that the sentence imposed on Civcija was within the range of sentences that could reasonably be imposed for the offence of trafficking cannabis, taking into account all the circumstances of the case. The court also noted that the applicant had not provided sufficient evidence to demonstrate that the sentence was excessive. Consequently, the court refused the application for leave to appeal against sentence.

The court's final order was that the application for leave to appeal against sentence was refused, dated 9 February 2018. The court upheld the original sentence imposed on Civcija, finding it to be neither manifestly excessive nor disproportionate when compared to the sentences of co-offenders.

Orders

Orders of the court

Date of Order: 9 February 2018

The application for leave to appeal against sentence is refused.

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 Civcija [2018] QCA 83
PARTIES:	R v CIVCIJA, Mato (applicant)
FILE NO/S:	CA No 108 of 2017 SC No 987 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 28 April 2017 (Burns J)
DELIVERED ON:	Date of Order: 9 February 2018 Date of Publication of Reasons: 4 May 2018
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2018
JUDGES:	Sofronoff P and Morrison and McMurdo JJA
ORDER:	Date of Order: 9 February 2018 The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – where the applicant pleaded guilty to one count of trafficking cannabis – where the applicant was sentenced to eight years imprisonment with parole eligibility after two years and nine months – where the applicant’s trafficking had been associated with the major trafficking business of Terrence and Joshua Thornbury – where a sentence of 10 years imprisonment was imposed on both Terrence and Joshua Thornbury for trafficking cannabis – where five couriers who were employed by the Thornbury brothers were sentenced for their involvement in the trafficking operation – where the sentences imposed on the couriers ranged from four years imprisonment fully suspended to six years imprisonment – where the couriers were sentenced for different crimes that arose in different ways from the applicant’s offending, albeit as part of the same trafficking enterprise – whether the sentence imposed on the applicant was not in parity with the sentences imposed on the couriers CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where at first instance it was submitted on behalf of the applicant that he should serve a term of imprisonment of between seven and eight years – where on appeal it was submitted that the Court should substitute a term of seven years imprisonment for the eight years imprisonment imposed at first instance – where the applicant cited no comparable cases on appeal to demonstrate that the sentence imposed was excessive in the circumstances of his case – whether the sentence imposed on the applicant was manifestly excessive Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied R v Thornbury[2017] QCA 283, considered R v Thornbury[2017] QCA 284, considered R v Walsh[2008] QCA 391, applied
COUNSEL:	S G Bain for the applicant J A Wooldridge for the respondent
SOLICITORS:	A W Bale & Son for the applicant Director of Public Prosecutions (Queensland) for the respondent