R v Cornick

Case [2015] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cornick [2015] QCA 279

PARTIES:

R
v
CORNICK, Michael Allan
(applicant)

FILE NO/S:

CA No 105 of 2015
SC No 71 of 2015
SC No 152 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Brisbane – Unreported, 22 May 2015

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2015

JUDGES:

Fraser and Philippides JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of trafficking and some lesser drug offences and not guilty to other lesser drug offences – where the applicant was found guilty by a jury on all but one of the counts he pleaded not guilty to – where the applicant was sentenced to 10 years’ imprisonment on the first count of trafficking and 12 years’ imprisonment on the second count of trafficking – where the second trafficking was committed while the applicant was on bail for the first trafficking – where the sentencing judge found that the second trafficking was a substantial escalation in offending – whether the sentencing judge placed insufficient weight on the mitigating factors and, in particular, the guilty pleas when imposing sentence – whether the sentence imposed of 12 years’ imprisonment on the second trafficking count was manifestly excessive

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied
R vAhmetaj[2015] QCA 248, cited
R v Barker[2015] QCA 215, considered
R v Belbruno (2000) 117 A Crim R 150; [2000] VSCA 201, cited
R v Bobonica & Runcan[2009] QCA 287, cited
R v Feakes[2009] QCA 376, cited
R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited
R v Johnson[2014] QCA 79, cited
R v Lambert; Ex parte Attorney-General (2000) 111 A Crim R 564; [2000] QCA 141, considered
R v McGinniss[2015] QCA 34, cited
R v Mustafa[2006] QCA 231, considered
R v Omer-Noori[2006] QCA 311, considered
R v Ryan[2014] QCA 78, cited
R v Safi[2015] QCA 13, considered

COUNSEL:

P J Davis QC, with J R Jones, 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

  1. FRASER JA:  I have had the advantage of reading the reasons for judgment of Philippides JA.  I agree with those reasons and with the order proposed by her Honour.

  2. PHILIPPIDES JA:  On 22 May 2015, the applicant, who seeks leave to appeal against sentence, was sentenced on his pleas…

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Details
AGLC
R v Cornick [2015] QCA 279
Case
[2015] QCA 279
Decision Date

CaseChat Overview and Summary

The case of R v Cornick involved an appeal against the sentence imposed by the sentencing judge. The applicant, who had pleaded guilty to two counts of trafficking and some lesser drug offences, and had been found guilty by a jury on all but one of the counts to which he had pleaded not guilty, was sentenced to 10 years’ imprisonment for the first count of trafficking and 12 years’ imprisonment for the second count of trafficking. The second trafficking offence was committed while the applicant was on bail for the first trafficking offence. The sentencing judge found that the second trafficking offence was a substantial escalation in offending. The applicant argued that the sentence imposed on the second trafficking count was manifestly excessive and that the sentencing judge had placed insufficient weight on the mitigating factors and, in particular, the guilty pleas when imposing the sentence.

The legal issues that the court was required to decide included whether the sentencing judge had placed insufficient weight on the mitigating factors and, in particular, the guilty pleas when imposing the sentence and whether the sentence imposed of 12 years’ imprisonment on the second trafficking count was manifestly excessive. The court considered the applicant's good behaviour and the courses undertaken while in custody, following his arrest on the second occasion, which were expressly referred to by the learned sentencing judge, who remarked that they went to the applicant’s “considerable credit”. The court also considered the applicant's efforts at rehabilitation, which were viewed in the context of an offender who, although a drug user, was not drug addicted or motivated to offend because of an addiction.

The court concluded that the applicant did not warrant special leniency and there was no basis to conclude that his rehabilitation efforts were not given due weight. The court also considered the applicant's pleas of guilty and cooperation, noting that the applicant was only entitled to a discount on sentence in relation to the counts to which he pleaded guilty. The court found that the appropriate discount to be given in relation to the pleas was a matter to be determined by the sentencing judge, having regard to factors which included the timeliness of the pleas and the strength of the Crown case. The court found that the sentencing judge had considered these factors and had placed sufficient weight on the mitigating factors, including the guilty pleas, when imposing the sentence.

The court concluded that the sentence imposed on the second trafficking count was not manifestly excessive and that the application for leave to appeal against the sentence should be refused. The court noted that the sentencing judge had considered the substantial escalation in offending and had imposed a sentence that was appropriate in the circumstances. The court also noted that the applicant had not demonstrated that the sentence imposed was manifestly excessive or inadequate.

Orders

Orders of the court

The application for leave to appeal against sentence be refused.

Background

Background to the litigation

Although the application for leave to appeal referred to the sentences imposed on counts 2 and 16, it was apparent from the oral submissions that the focus of the application was the sentence imposed on count 16, which, it was contended, was manifestly excessive. Senior counsel contended that, in respect of both counts 2 and 16, appropriate sentences were concurrent sentences of 10 years.Background The history of the matter has some complexity. The applicant’s senior counsel adopted as accurate the respondent’s summary which is as follows. The applicant was committed for trial following a full hand up committal hearing, on 20 March 2013. On 6 February 2015, the Crown presented a replacement 26 count indictment charging the applicant with the following offences:·Count 1 – Supply methylamphetamine on an unknown date between 31 July 2007 and 1 September 2008;·Count 2 – Trafficking methylamphetamine between 20 October 2008 and 20 March 2011;·Count 3 – Production 3,4-methylenedioxymethamphetamine (MDMA) between 9 August 2010 and 20 March 2011;·Count 4 – Supply methylamphetamine on 20 October 2010;·Count 5 – Supply methylamphetamine on 8 November 2010;·Count 6 – Possession cannabis, in quantity exceeding 500 grams on 8 November 2010;·Count 7 – Supply methylamphetamine on 17 March 2011;·Count 8 – Supply methylamphetamine on 17 March 2011;·Count 9 – Supply methylamphetamine on 17 March 2011;·Count 10 – Unlawful possession of a category H weapon on 19 March 2011;·Count 11 – Possession methylamphetamine, in quantity exceeding 2 grams, on 19 March 2011;·Count 12 – Possession on 19 March 2011 of prohibited items, namely pseudoephedrine, hypophosphorous acid and iodine;·Count 13 – Possession, on 19 March 2011, of things (an electrical burner, a quantity of light shades, a heat lamp, a quantity of transformers, a quantity of liquid fertilizer, a quantity of funnels, a quantity of electrical cords and a fan) used in connection with the commission of the crime of producing a dangerous drug;·Count 14 – Unlawful possession on 19 March 2012 of a category H weapon;·Count 15 – Unlawful possession on 19 March 2012 of a category D weapon;·Count 16 – Trafficking methylamphetamine, cannabis and MDMA between 8 February 2012 and 18 May 2012;·Count 17 – Supply MDMA on 7 April 2012;·Count 18 – Possession methylamphetamine, in quantity exceeding 2 grams, on 17 May 2012;·Count 19 – Possession cannabis on 17 May 2012;·Count 20 – Possession cocaine, in quantity exceeding 2 grams, on 17 May 2012;·Count 21 – Possession of the dangerous drug alprazolam on 17 May 2012;·Count 22 – Unlawful possession of a relevant substance pseudoephedrine on 17 May 2012;·Count 23 – Possession, on 17 May 2012, of things (a sim card, a quantity of mobile phones, digital scales and a clip seal plastic bag) used in connection with the commission of the crime of trafficking in a dangerous drug;·Count 24 – Possession, on 17 May 2012, of a quantity of money obtained from trafficking in a dangerous drug, knowing it to have been obtained from the trafficking;·Count 25 – Possession methylamphetamine, in quantity exceeding 2 grams, on 17 May 2012; and·Count 26 – Possession, on 17 May 2012, of things (a quantity of clip seal bags, a plastic spoon and digital scales) used in connection with the commission of the crime of trafficking in a dangerous drug.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant’s good behaviour and the courses undertaken while in custody, following his arrest on the second occasion, were matters that were expressly referred to by the learned sentencing judge, who remarked that they went to the applicant’s “considerable credit”. The applicant’s efforts at rehabilitation are to be viewed in the context of an offender who, although a drug user, was not drug addicted or motivated to offend because of an addiction. The applicant did not warrant special leniency and there is no basis to conclude that his rehabilitation efforts were not given due weight.Plea of guilty and cooperation Referring to R v Lambert; ex parte Attorney-General,[20] the respondent submitted that the applicant was only entitled to a discount on sentence in relation to the counts to which he pleaded guilty. In contending for a different position, the applicant referred to the following statement in Lambert:[21]“In a mixed situation like the present, where the overall operative sentence is likely to be imposed on [the count that went to trial], and where the sentence to be imposed for it is likely to be increased to take account of the subsequent offences, the amount of the increase should be abated to give appropriate credit for [the] pleas on those later counts.”[20][2000] QCA 141.[21][2000] QCA 141 at [28]. The applicant argued that, applying the reasoning in Lambert, where, as in the present case, there was a trial of the less serious counts, that was not a factor that ought to impact largely on the sentence; for the most serious counts of trafficking to which pleas were entered. The applicant argued that the pleas should be seen as indicative of remorse, accepting nothing else could be pointed to as evidence of remorse. The learned sentencing judge considered that the applicant’s preparedness to advance “a blatantly false explanation” at trial for the disputed counts was indicative of an absence of remorse. However, the fact that the applicant went to trial on some counts did not detract from the cooperation provided by the pleas to the trafficking counts. The appropriate discount to be given in relation to the pleas, nevertheless, was a matter to be determined by the sentencing judge having regard to factors which included the timeliness of the pleas and the strength of the Crown case. I have chronicled in some detail the history of the matter proceeding through the Court. It was a factor on which his Honour rightly placed weight. He did not accept that the pleas of guilty that were entered were early or timely. Noting the strength of the Crown case, his Honour nevertheless acknowledged the utility of the pleas and also that, in regard to the charges that proceeded to trial, the manner in which the defence case was conducted, including the making of admissions, had facilitated the trial proceeding more expeditiously than would otherwise have been the case. The analysis below of comparatives demonstrates that a sufficient discount was allowed for the plea to count 16.Manifestly excessive