R v Da Silva - [2020] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v Da Silva [2020] QCA 176

PARTIES:

R
v
DA SILVA, Fabio Stringari
(applicant)

FILE NO/S:

CA No 270 of 2019
SC No 17 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 20 September 2019 (Holmes CJ)

DELIVERED ON:

25 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2020

JUDGES:

Morrison and McMurdo JJA and Boddice J

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant entered pleas of guilty to three counts relating to the importation of about four kilograms of cocaine – where the applicant was sentenced to nine years’ imprisonment for Count 1: importing a commercial quantity of cocaine – where the applicant seeks to challenge the sentences imposed on the sole ground that they are manifestly excessive – where the focus of the challenge was as to the nine year sentence – whether the sentences are manifestly excessive

R v Hasnan[2016] QCA 281, cited
R v Jimson[2009] QCA 183, cited
R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions[2016] QCA 143, cited

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

MORRISON JA: On 26 November 2018 the applicant entered pleas of guilty to three counts relating to the importation of about four kilograms of cocaine. The offences were:
(a)Count 1: importing a commercial quantity of a border controlled drug, namely cocaine;
(b)Count 2: attempting to possess a commercial quantity of a border controlled drug, namely cocaine; and
(c)Count 3: dealing in the proceeds of crime worth $10,000 or more.
The sentencing was postponed and eventually took place on 20 September 2019.[1] At that time the applicant was sentenced to the following terms of imprisonment: importation, nine years; attempt to possess the drugs, four years; and dealing in the proceeds of crime, 12 months. Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth) a non-parole period was fixed at four years and six months.
[1]The delay was explained at the sentencing hearing, but is irrelevant to the present issue.
The applicant seeks to challenge the sentences imposed on the sole ground that they are manifestly excessive. The focus of the challenge was as to the nine year sentence.
Circumstances of the offending
The sentencing hearing proceeded on the basis of an agreed schedule of facts.[2]
[2]Exhibit 1 Appeal Book (AB) 57.
The applicant was born on 28 September 1976. Thus, he was 39 at the time of committing the offences and 42 at the time of his sentence.
Background
In November 2015 a person (“LN”) met with an associate named “Diego Sott”, in Brazil. At the meeting Sott introduced LN to…

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 Da Silva

Details

AGLC: R v Da Silva [2020] QCA 176
Case: [2020] QCA 176
Decision Date: 25 August 2020

CaseChat Overview and Summary

In the case of R v Da Silva, the applicant appealed against his sentence, arguing that it was manifestly excessive. He had entered pleas of guilty to three counts related to the importation of approximately four kilograms of cocaine. The applicant was sentenced to nine years’ imprisonment for the first count, four years for the second, and 12 months for the third, with all sentences to be served concurrently. A non-parole period of four years and six months was set.

The applicant contended that the sentence of nine years was manifestly excessive. He argued that he had no involvement in planning, booking, or purchasing LN’s flights, did not know LN, did not meet him, and never spoke to him. The court found that the applicant had communicated with Sott after returning from Brazil in relation to flights from Brazil to Perth. The path of travel taken by LN was the same as the one the applicant had travelled to Brazil to meet Sott. The applicant was also aware that LN was in Australia and communicated with someone (believed to be Sott) about how to contact LN at a nominated hotel in Perth. The applicant was plainly aware that LN was in Australia.

The applicant also argued that there was no evidence that the cocaine was his or that he would do anything with it such as selling or distributing it. The court found that the applicant was a participant in arrangements between himself and Sott to: (i) contact LN at his hotel in Perth; (ii) meet LN on the Gold Coast; (iii) take possession of the suitcase LN was bringing; (iv) pay LN $27,000 on behalf of those for whom LN was working; and (v) inferentially, pass the drugs to someone else. The court found that the applicant was an important, even if limited, participant in the importation and handover of the cocaine.

The applicant’s application for leave to appeal against sentence was refused. The learned sentencing judge balanced the matters, and drew support from the decision in Onyebuchi, concluding that a period of nine years was appropriate in respect of Count 1, four years on Count 2, and 12 months on Count 3. All sentences were to be served concurrently, and a non-parole period of four years and six months was set.

Orders

Orders of the court

Application for leave to appeal against sentence 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

The learned sentencing judge balanced those matters, and drew support from the decision in Onyebuchi, concluding that a period of nine years was appropriate in respect of Count 1, four years on Count 2, and 12 months on Count 3. All sentences were to be served concurrently, and a non-parole period of four years and six months was set.Consideration The applicant, who appeared on his own behalf, advanced a number of matters in support of the contention that the sentence of nine years was manifestly excessive. I will deal with each in turn. The applicant first contended that it was not possible that he could have received an indication through social media that LN had arrived in Australia. He pointed to the fact that he had nothing to do with regard to the planning, booking or purchasing of LN’s flights, did not know LN, did not meet him, and never spoke to him. This contention misses the point. The agreed facts were that the applicant travelled to Brazil to meet Sott, and communicated with Sott after he had returned to Australia in relation to flights from Brazil to Perth. That was the path of travel taken by LN. Further, after LN had arrived in Perth, the applicant communicated with someone (believed to be Sott) about how to contact LN at a nominated hotel in Perth, and for that purpose was provided with LN’s name. A few days later Sott told UCO that “The friend is trying to call you”, evidently referring to the applicant. Communications that day between the applicant and Sott were for the purpose of arranging the collection of the cocaine from LN. In the circumstances, the applicant was plainly aware that LN was in Australia. The fact that the applicant might not have seen or understood the social media message is not to the point. The applicant also contended that there was no evidence that the cocaine was his or that he would do anything with it such as selling or distributing it. He added that he had no knowledge about the quantity or quality or anything else besides the money that he had to give to LN. Those matters may be accepted, but the fact is that the applicant was a participant in arrangements between himself and Sott to: (i) contact LN at his hotel in Perth; (ii) meet LN on the Gold Coast; (iii) take possession of the suitcase LN was bringing; (iv) pay LN $27,000 on behalf of those for whom LN was working; and (v) inferentially, pass the drugs to someone else. The agreed facts were that the applicant and UCO discussed the arrangements to meet, the payment, and the integrity of the drugs. Plainly, the applicant was an important, even if limited, participant in the importation and handover of the cocaine. The applicant contended that there was no clear or substantial evidence that he had participated in planning the importation, or that he was motivated by financial gain to do what he did. That should be rejected. The agreed facts were that the applicant travelled to Brazil in November 2015 in order to meet with Sott, the person with whom he made arrangements in respect of meeting the courier (LN), collecting the drugs, and paying LN. Whilst Sott directed the applicant as to how to contact LN in Perth, including the provision of the particular hotel, the hotel’s phone number and what to do, nonetheless the applicant had a degree of autonomy in how he went about that task. Likewise, the applicant had a degree of autonomy as to how he was to arrange the meeting with LN on the Gold Coast, and make the payment. The applicant’s contact with the person he believed to be LN was arranged by the applicant, who had possession of the money to hand over.

CITATION:	R v Da Silva [2020] QCA 176
PARTIES:	R v DA SILVA, Fabio Stringari (applicant)
FILE NO/S:	CA No 270 of 2019 SC No 17 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 20 September 2019 (Holmes CJ)
DELIVERED ON:	25 August 2020
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2020
JUDGES:	Morrison and McMurdo JJA and Boddice J
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant entered pleas of guilty to three counts relating to the importation of about four kilograms of cocaine – where the applicant was sentenced to nine years’ imprisonment for Count 1: importing a commercial quantity of cocaine – where the applicant seeks to challenge the sentences imposed on the sole ground that they are manifestly excessive – where the focus of the challenge was as to the nine year sentence – whether the sentences are manifestly excessive R v Hasnan[2016] QCA 281, cited R v Jimson[2009] QCA 183, cited R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions[2016] QCA 143, cited
COUNSEL:	The applicant appeared on his own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent