SUPREME COURT OF QUEENSLAND
CITATION:
R v Cumner [2020] QCA 54
PARTIES:
R
v
CUMNER, Scott Andrew
(applicant)FILE NO/S:
CA No 277 of 2019
SC No 43 of 2018
SC No 97 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Toowoomba – Date of Sentence: 8 October 2019 (Applegarth J)
DELIVERED ON:
27 March 2020
DELIVERED AT:
Brisbane
HEARING DATE:
5 March 2020
JUDGES:
Morrison JA and Bond and Callaghan JJ
ORDER:
Application for leave to appeal is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced, on his pleas of guilty, in relation to a number of drug related offences consisting of trafficking in methylamphetamine and possession of methylamphetamine and cannabis – where he was also sentenced in respect of his unlawful possession of a motor vehicle which had been modified so as to obscure its ownership – where a sentence of nine years and five months’ imprisonment was imposed for count 1 – where counts 2 to 7 were imposed on the basis that those offences were all part of the trafficking offence – where the sentence for unlawful possession of a motor vehicle was made concurrent on that imposed for the trafficking – whether the sentence is manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where a parole eligibility date was fixed, after serving six years – where the sentence took into account two separate periods of pre-sentence custody, neither of which could be declared as time served – whether the learned sentencing judge erred in dealing with two factual matters – where the second specific error relied upon was the contention that the learned sentencing judge formulated both the head sentence and parole eligibility date with direct proportionality to what would have been imposed had a sentence of 10 years or over been available, without the non-declarable pre-sentence custody – where this was said to be inconsistent with previous approaches applied by this Court in R v Carlisle and R v Tran; Ex parte Attorney-General (Qld) – whether the learned sentencing judge’s state of satisfaction was left unclear in respect of the two factual matters – whether reliance upon the two factual matters as aggravating features was not permissible under s 132C of the Evidence Act 1977 (Qld)
Evidence Act 1977 (Qld), s 132C
R v Carlisle[2017] QCA 258, considered
R v Castner[2018] QCA 265, cited
R v Feakes[2009] QCA 376, cited
R v Tran; Ex parte Attorney-General (Qld)[2018] QCA 22, citedCOUNSEL:
A J Kimmins for the applicant
M J Hynes for the respondentSOLICITORS:
Lawler Magill for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: On 8 October 2019 the applicant was sentenced, on his pleas of guilty, in…
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- R v Cumner [2020] QCA 54
- Case
- [2020] QCA 54
- Decision Date
CaseChat Overview and Summary
The court considered the applicant's arguments and found that they were not sustainable. The learned sentencing judge had taken into account the pre-sentence custody time and had given full account for it, which was appropriate. The judge had also considered the two factual matters and had made clear his state of satisfaction in respect of them. The judge had not acted on the wrong principle and had not formulated the head sentence and parole eligibility date with direct proportionality to what would have been imposed had a sentence of 10 years or over been available, without the non-declarable pre-sentence custody. The court found that the sentence was not manifestly excessive or inadequate and that the learned sentencing judge had exercised his discretion properly.
The court dismissed the application for leave to appeal, finding that the applicant had not demonstrated that the sentence was manifestly excessive or inadequate, or that the learned sentencing judge had acted on the wrong principle. The court upheld the sentence imposed by the learned sentencing judge and found that it was appropriate in all the circumstances. The application for leave to appeal was refused, and the sentence remained in place.
Orders
Orders of the court
Application for leave to appeal 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
Having made those observations the learned sentencing judge then discussed the imposition of the sentences for trafficking and for unlawful possession of a motor vehicle:[27]“You have been in custody now for approximately two years, seven months. I am unable to declare the 269 days spent between 24 August 2016 and 19 May 2017 and a further period of 690 days spent between 17 November 2017 and 7 October 2019 as time served. That is a total period of 959 days, or, as I said, a period of about two years and seven months. It would have been much better if all matters against you had been disposed of today, but they cannot be. In accordance with the Court of Appeal authorities, unless there is good reason not to, I should take that pre-sentence custody into account. I am going to take it into account and give you full account for it. You do not get the benefit of it on any other occasion. And so to deduct a period of two years and seven months from a notional sentence of 12 years, one arrives at nine years and five months. For the unlawful use of a motor vehicle, there would be a non-parole period of eight months on a two-year sentence, and so the non-parole period effectively would have been one of eight years on a 10-year sentence and a further eight months on the unlawful possession of a motor vehicle, being a total non-parole period of eight years and eight months. If I deduct two years and seven months from that, being the non-declarable time, one arrives at a period of a little over six years. Therefore, I consider that the most appropriate head sentence to reflect your overall criminality is a sentence of nine years and five months, and to give you a parole eligibility date six years from today, which will be 7 October 2025.”[27]AB 44 line 35 to AB 45 line 4.Consideration The applicant contends that the learned sentencing judge erred in dealing with two factual matters, and that his Honour’s state of satisfaction was left unclear in respect of them and thus reliance upon them as aggravating features was not permissible under s 132C of the Evidence Act 1977 (Qld). The first of these factual matters was said to be the inference that the applicant was able to transport the drugs due to his transportation background. This submission refers to a passage in the sentencing remarks where his Honour was dealing with the question of the drugs that had been buried on or near the applicant’s property. The relevant passages in the exchange during submissions are set out in paragraph [41] above. The applicant contends in this respect, as well as whether the applicant was storing the drugs on his own behalf or for someone else, that the factual matters “were either directly found adverse to the Applicant, or … the state of his Honour’s satisfaction was left unclear”.[28][28]Applicant’s Outline, para 11. In my view, this contention cannot be sustained. When the learned sentencing judge dealt with these matters in his remarks, his Honour noted that the suggestion of the drugs being stored for others was a matter conveyed by counsel’s instructions but that “there is no evidence of that”, and “no evidence from Ms Welldon in her statement to support the proposition”.[29] His Honour then referred to the fact that there was no evidence of extremely large scale supplies on the telephone intercepts, but at the same time the intercepts only related to one of the applicant’s telephones. The learned sentencing judge went on to observe that even if it was the case that the applicant was storing the drugs that were found on his property, “that puts you in a different category, but it hardly puts you in a good light”, because the applicant “would be storing someone else’s [drugs], and the Court must impose heavy penalties for people who possess drugs in those kind of quantities and conceal them for the benefit of drug traffickers”.[30] The learned sentencing judge then said:[31]“It is one inference – I do not necessarily draw it – that you were able to transport these drugs. But where you have chosen to exercise your right to silence and there is not much evidence that you were, in fact, storing these drugs for others, I tend to conclude that you were storing them for yourself. Whether that be the case or not, your drug trafficking was on a large scale. You were not simply a storeman at the end of the period. You were dealing in large amounts of cash at the start of the trafficking period and there was consistency to your trafficking. It is not said that at some time during this 18-month period your business went into a lull.Because of the deficit of some information, because you have chosen to exercise your right to silence and because only one telephone was able to be intercepted, I am prepared to proceed on the basis that you were dealing largely on your own account and your business had a high intensity selling in various quantities.”[29]AB 42 lines 27-30.[30]AB 42 lines 39-42.[31]AB 42 line 42 to AB 43 line 7; emphasis added.