R v DAC - [2023] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

R v DAC [2023] QCA 53

PARTIES:

R
v
DAC
(applicant)

FILE NO/S:

CA No 253 of 2022
SC No 28 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2023

JUDGES:

Bond JA and Gotterson AJA and Boddice AJA

ORDERS:

1.    Application for leave to appeal granted.

2.    Appeal allowed.

3.    Vary the Applicant’s sentence of imprisonment by substituting 12 months for 16 months as the period after which his sentence is to be suspended.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs, one count of possession of the dangerous drug testosterone in a quantity that exceeded 50 grams, three counts of possession of other dangerous drugs, and one count of unlawful production of testosterone – where the applicant had no previous criminal history – where the applicant cooperated with law enforcement authorities in relation to trafficking in dangerous drugs by others – where the applicant was sentenced to five years’ imprisonment to be suspended after a period of 16 months – where the learned sentencing judge did not make any discernible allowance for the exceptional circumstances of mitigation – whether the sentence imposed was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2), s 13B

R v Ungvari[2010] QCA 134, cited
R v Watson[2021] QCA 225, cited

COUNSEL:

B J Power KC for the applicant
A R Baker for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant
Director of Public Prosecutions (Queensland) for the respondent

BOND JA: I agree with the reasons for judgment of Gotterson AJA and with the orders proposed by his Honour.
GOTTERSON AJA: In late 2022, DAC[1] pleaded guilty to trafficking in dangerous drugs (Count 1), possession of the dangerous drug testosterone in a quantity that exceeded 50 grams (Count 2), possession of three other dangerous drugs (Counts 3, 4 and 5), and unlawful production of testosterone (Count 6). The trafficking offence was alleged to have taken place between 22 December 2020 and 23 April 2021 at Brendale and elsewhere in Queensland. The possession and production offences were alleged to have occurred on 22 April 2021.
[1]At the request of his counsel, which was unopposed, the name of this person has been anonymised for publication of these reasons for judgment.
That day DAC was sentenced on all counts in the Supreme Court at Brisbane. Convictions were recorded in each case. For Count 1, he was sentenced to a term of five years imprisonment to be suspended after serving 16 months and subject to his not committing another offence punishable by imprisonment within a period of five years. A serious drug offence certificate was issued for DAC in relation to this count. No further punishment was imposed for Counts…

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 DAC

Details

AGLC: R v DAC [2023] QCA 53
Case: [2023] QCA 53
Decision Date: 28 March 2023

CaseChat Overview and Summary

The applicant, DAC, appealed against his sentence for various drug-related offences. The nature of the dispute was the perceived severity of the sentence imposed by the trial judge. DAC pleaded guilty to one count of trafficking in dangerous drugs, one count of possession of the dangerous drug testosterone in a quantity that exceeded 50 grams, three counts of possession of other dangerous drugs, and one count of unlawful production of testosterone. The appeal was heard in the court of appeal.

The court was required to determine whether the sentence was manifestly excessive or inadequate. The applicant argued that the sentence was manifestly excessive, particularly considering his cooperation with law enforcement authorities. The court had to assess whether the learned sentencing judge had adequately considered the exceptional circumstances of mitigation presented by the applicant, who had no previous criminal history. The applicant's cooperation with law enforcement was also considered a mitigating factor.

The court found that the sentence imposed by the trial judge was indeed manifestly excessive. The sentencing judge had failed to make any discernible allowance for the exceptional circumstances of mitigation, including the applicant's cooperation with law enforcement. The court noted that the sentence of five years’ imprisonment, to be suspended after a period of 16 months, was disproportionate to the applicant's level of culpability and the mitigating factors presented. The court granted the application for leave to appeal and allowed the appeal. The sentence was varied to substitute 12 months for 16 months as the period after which the sentence was to be suspended.

The final orders of the court were to grant the application for leave to appeal, allow the appeal, and vary the applicant’s sentence of imprisonment by substituting 12 months for 16 months as the period after which his sentence was to be suspended.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Vary the Applicant’s sentence of imprisonment by substituting 12 months for 16 months as the period after which his sentence is to be suspended.

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

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CITATION:	R v DAC [2023] QCA 53
PARTIES:	R v DAC (applicant)
FILE NO/S:	CA No 253 of 2022 SC No 28 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 March 2023
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2023
JUDGES:	Bond JA and Gotterson AJA and Boddice AJA
ORDERS:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. Vary the Applicant’s sentence of imprisonment by substituting 12 months for 16 months as the period after which his sentence is to be suspended.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs, one count of possession of the dangerous drug testosterone in a quantity that exceeded 50 grams, three counts of possession of other dangerous drugs, and one count of unlawful production of testosterone – where the applicant had no previous criminal history – where the applicant cooperated with law enforcement authorities in relation to trafficking in dangerous drugs by others – where the applicant was sentenced to five years’ imprisonment to be suspended after a period of 16 months – where the learned sentencing judge did not make any discernible allowance for the exceptional circumstances of mitigation – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2), s 13B R v Ungvari[2010] QCA 134, cited R v Watson[2021] QCA 225, cited
COUNSEL:	B J Power KC for the applicant A R Baker for the respondent
SOLICITORS:	Robertson O’Gorman for the applicant Director of Public Prosecutions (Queensland) for the respondent