R v Cunha; R v Rosso Bernardo - [2017] QCA 6

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cunha; R v Rosso Bernardo [2017] QCA 6

PARTIES:

In CA No 88 of 2016:

R
v
CUNHA, Edmo
(first applicant)

In CA No 107 of 2016:

R
v
ROSSO BERNARDO, Gean Carlos
(second applicant)

FILE NO/S:

CA No 88 of 2016
CA No 107 of 2016
SC No 950 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 23 March 2016

DELIVERED ON:

7 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2016

JUDGES:

Gotterson and Morrison JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 88 of 2016 (Cunha)

The application is refused.

In CA No 107 of 2016 (Rosso Bernardo)

The application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the first applicant Cunha pleaded guilty to importing a marketable quantity of a border controlled drug and was sentenced to eight years imprisonment with a non-parole period of five years – where the applicant contended that the sentence imposed did not take into account his guilty plea, lack of a criminal history, remorse, prospects for rehabilitation, voluntary work, and personal circumstances – where the respondent contended all factors were taken into account – where the personal circumstances submitted as relevant by the applicant arose after the sentence was imposed – whether the sentencing judge took into account all relevant factors at the time of sentencing – whether the sentence was within the range suggested by comparable cases – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – JUDGE ACTED ON WRONG PRINCIPLE – SENTENCE MANIFESTLY EXCESSIVE – where the second applicant Bernardo pleaded guilty to importing a commercial quantity of a border controlled drug and was sentenced to nine years imprisonment with a non-parole period of five years and six months – where the second applicant pleaded guilty to an offence with a higher maximum penalty than the first applicant– where the second applicant contended that the parity principle should have been applied so that the second applicant received the same sentence as the first applicant – where the respondent contended that the second applicant’s offending was objectively more serious than the first applicant’s – whether the principle of parity was applied to the extent possible under the statutory regime – whether the sentencing judge addressed the differences between the two offenders – whether, all other factors being equal, the second applicant should receive a more serious sentence than the first applicant because he plead guilty a similar offence with a higher maximum sentence – whether the sentence was manifestly excessive

Criminal Code 1995 (Cth), s 307.1(1), s 307.2(1)

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79…

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.

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Details

Case: [2017] QCA 6
Decision Date: 7 February 2017

CaseChat Overview and Summary

The applicants, Cunha and Rosso Bernardo, appealed against their sentences imposed by the Supreme Court of Queensland, with Cunha sentenced to eight years imprisonment with a non-parole period of five years and Bernardo sentenced to nine years imprisonment with a non-parole period of five years and six months. Both applicants were convicted of drug importation offences. Cunha pleaded guilty to importing a marketable quantity of a border controlled drug, while Bernardo pleaded guilty to importing a commercial quantity of a border controlled drug. The applicants argued that their sentences were manifestly excessive and did not properly take into account various mitigating factors. They further argued that Bernardo's sentence should have been aligned with Cunha's due to the principle of parity between co-offenders.

The legal issues before the court were whether the sentences imposed were manifestly excessive, and whether the sentencing judge failed to take into account all relevant factors, including the applicants' guilty pleas, lack of criminal history, remorse, prospects for rehabilitation, voluntary work, and personal circumstances. The court also considered whether the principle of parity between co-offenders should have been applied, and if Bernardo's sentence should have been more lenient given the similarity of the offences and the fact that Cunha received a lesser sentence despite pleading guilty to an offence with a lower maximum penalty.

The court found that the sentences imposed on both applicants were not manifestly excessive and were within the range suggested by comparable cases. The sentencing judge had taken into account all relevant factors at the time of sentencing, including the applicants' personal circumstances and voluntary work. The court further found that the principle of parity was not applicable in this case, as the sentencing judge had appropriately addressed the differences between the two offenders, and Bernardo's offending was objectively more serious than Cunha's. Therefore, the applicants' appeals against their sentences were dismissed.

The orders of the court were that the applications for leave to appeal against the sentences were refused in both cases. Specifically, in CA No 88 of 2016 (Cunha), the application was refused, and in CA No 107 of 2016 (Rosso Bernardo), the application was also refused. The judges agreed with the reasons of Morrison JA and the orders proposed by his Honour.

Orders

Orders of the court

In CA No 88 of 2016 (Cunha)

The application is refused.

In CA No 107 of 2016 (Rosso Bernardo)

The application is 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

The fact that it was an Attorney’s appeal, is sufficient to make the decision in De La Rosa of little utility on the question of whether this sentence is manifestly excessive. All that De La Rosa decides is that that particular sentence was within range, and available to that sentencing judge.Conclusion In my view, none of the authorities referred to by Mr Cunha demonstrate that the sentence imposed on him was manifestly excessive. To the contrary, Jimson supports the sentence. I am unpersuaded that the sentence can be shown to be manifestly excessive. The application for leave to appeal against the sentence ought to be refused. I propose the following orders:1.In CA no 88 of 2016, the application is refused.2.In CA no 107 of 2016, the application is refused. DOUGLAS J: I agree with the reasons of Morrison JA and the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cunha; R v Rosso Bernardo [2017] QCA 6
PARTIES:	In CA No 88 of 2016: R v CUNHA, Edmo (first applicant) In CA No 107 of 2016: R v ROSSO BERNARDO, Gean Carlos (second applicant)
FILE NO/S:	CA No 88 of 2016 CA No 107 of 2016 SC No 950 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 23 March 2016
DELIVERED ON:	7 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2016
JUDGES:	Gotterson and Morrison JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In CA No 88 of 2016 (Cunha) The application is refused. In CA No 107 of 2016 (Rosso Bernardo) The application is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the first applicant Cunha pleaded guilty to importing a marketable quantity of a border controlled drug and was sentenced to eight years imprisonment with a non-parole period of five years – where the applicant contended that the sentence imposed did not take into account his guilty plea, lack of a criminal history, remorse, prospects for rehabilitation, voluntary work, and personal circumstances – where the respondent contended all factors were taken into account – where the personal circumstances submitted as relevant by the applicant arose after the sentence was imposed – whether the sentencing judge took into account all relevant factors at the time of sentencing – whether the sentence was within the range suggested by comparable cases – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS – JUDGE ACTED ON WRONG PRINCIPLE – SENTENCE MANIFESTLY EXCESSIVE – where the second applicant Bernardo pleaded guilty to importing a commercial quantity of a border controlled drug and was sentenced to nine years imprisonment with a non-parole period of five years and six months – where the second applicant pleaded guilty to an offence with a higher maximum penalty than the first applicant– where the second applicant contended that the parity principle should have been applied so that the second applicant received the same sentence as the first applicant – where the respondent contended that the second applicant’s offending was objectively more serious than the first applicant’s – whether the principle of parity was applied to the extent possible under the statutory regime – whether the sentencing judge addressed the differences between the two offenders – whether, all other factors being equal, the second applicant should receive a more serious sentence than the first applicant because he plead guilty a similar offence with a higher maximum sentence – whether the sentence was manifestly excessive Criminal Code 1995 (Cth), s 307.1(1), s 307.2(1) Director of Public Prosecutions (Cth) v De La Rosa (2010) 79…