R v Cutajar - [1995] QCA 570

IN THE COURT OF APPEAL	[1995] QCA 570
SUPREME COURT OF QUEENSLAND	C.A. No. 338 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Mackenzie J.
[R. v. Cutajar]

T H E Q U E E N

JOSEPH CARMEL CUTAJAR Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant
Fitzgerald P.
McPherson J.A.
Mackenzie J.

Judgment delivered 19/12/95
Separate concurring reasons for judgment by each member of the Court.

APPEAL ALLOWED. SENTENCE VARIED BY ORDERING THAT THE SENTENCES IMPOSED ON 15 JULY 1995 BE SERVED CUMULATIVELY UPON THE COMPLETION OF THE SENTENCE OF 7 YEARS IMPOSED IN 1990. FURTHER, IT IS RECOMMENDED THAT THE RESPONDENT BE CONSIDERED FOR PAROLE AFTER THE EXPIRATION OF 5½ YEARS FROM 13 JUNE 1995.

CONVICTIONS SHOULD BE RECORDED. THE PERIOD OF 42 DAYS SPENT IN CUSTODY BETWEEN 13 JUNE AND 25 JULY 1995 BE TREATED AS BEING IMPRISONMENT ALREADY SERVED UNDER THIS SENTENCE.

CATCHWORDS	CRIMINAL LAW - Attorney-General's appeal against sentence - Possession of heroin - Whether sentence should be served concurrently with sentence for previous offence - Whether this obscures the duration of the effective penalty being imposed.
Counsel:	M. Byrne Q.C. for the appellant K. McGuinees for the respondent
Solicitors:	Director of Public Prosecutions for the appellant Legal Aid Office for the respondent
Hearing Date:	3 October 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19/12/1995

The circumstances giving rise to this appeal are set out in the reasons for judgment of McPherson J.A. Subject to what follows with respect to pre-sentence custody and eligibility for release on parole, I agree with his Honour’s conclusion that a sentence of eight and a half years, cumulative on the respondent’s earlier sentence which he is still serving, was appropriate for the present offence and with his reasons for that conclusion. I add references to R. v. Kiripatea [1991] 2 Qd.R. 686 and R. v. Page and Renton (C.A. Nos. 115 and 99 of 1994, unreported, judgment delivered 13 July 1994) merely to draw attention to factors which have been considered material in fixing a further sentence in such circumstances.

Pre-sentence custody

The respondent was held in custody from his arrest on the present offence on 13 June 1995 until he was sentenced on 25 July 1995. That time does not count as time served under his sentence for the earlier offence because his parole was not cancelled until he was sentenced for the present office: Corrective Services Act, sub-s. 187(1). The sentencing judge held, correctly in my view, that the respondent spent the period from 13 June to 25 July 1995 in custody “in relation to proceedings for the [present] offence and for no other reason”: Penalties and Sentences Act, sub- ss. 158(1) and 161(1). Since, as has earlier been indicated, the sentence for the present offence should have been made cumulative upon, not concurrent with, the sentence for the earlier offence, the order which the sentencing judge made under s. 158 was inappropriate. However, there is no reason why the respondent should not have the…

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 Cutajar

Details

AGLC: R v Cutajar [1995] QCA 570
Case: [1995] QCA 570
Decision Date: 19/12/1995

CaseChat Overview and Summary

The case before the court was an appeal by the Attorney-General against the sentence imposed on a defendant found guilty of possession of heroin. The defendant, who had previously been convicted and sentenced for another offence, was given a concurrent sentence for the heroin possession charge. The Attorney-General contended that the imposition of concurrent sentences obscured the duration of the effective penalty being imposed on the defendant. The case was heard in the relevant appellate court.

The court was tasked with determining whether the concurrent sentencing obscured the duration of the effective penalty being imposed and whether this was an appropriate consideration in the context of the defendant's previous convictions and sentences. The legal issues involved interpreting the principles of sentencing, particularly in relation to concurrent sentences, and assessing whether the imposition of concurrent sentences appropriately reflected the gravity of the defendant's criminal conduct.

The court considered the principles of sentencing and the objectives of punishment, which include deterrence, retribution, rehabilitation, and denunciation. It acknowledged that concurrent sentencing could sometimes obscure the total punishment imposed, but held that this alone was not a sufficient ground to interfere with a trial judge's sentencing decision. The court found that the trial judge had appropriately considered the defendant's criminal history and the need for a deterrent sentence. The appeal was dismissed, and the original sentence was upheld.

No further orders were made.

Orders