R v DBJ - [2015] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBJ [2015] QCA 247

PARTIES:

R
v
DBJ
(applicant)

FILE NO/S:

CA No 311 of 2014
SC No 98 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 24 November 2014

DELIVERED ON:

1 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 June 2015

JUDGES:

Gotterson and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The 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 pleaded guilty to two counts, being conspiracy to murder and attempted burglary by breaking in the night – where the applicant was sentenced to six and a half years imprisonment on the conspiracy to murder count and two years on the attempted burglary count, with the sentences to be served concurrently – where the applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant married the complainant in 2005 – where the relationship was tumultuous and the applicant and complainant separated in August 2012 – where Family Court proceedings were commenced in November 2012 – where the applicant sought legal advice in relation to said proceedings – where the applicant was told he should meet someone who could “eliminate his problem” – where the applicant enlisted a third party to do some “intimidation work” – where the third party was told to leave the complainant incapable of caring for their children – where the applicant then proceeded to request the complainant be killed – where the applicant suggested it be made to look like a break and enter gone wrong – where the applicant provided the complainant’s address – where the applicant suggested means of undertaking the murder – where the first attempt to undertake the murder did not succeed because the complainant was at home and awake – where the applicant threatened to harm the third party’s family if he did not complete the job – where the second attempt did not succeed because the third party could not gain entry to the complainant’s house – where the third party contacted the police and disclosed some of the offending – where the police became involved and the applicant was subsequently arrested – where the applicant contends the sentence was manifestly excessive on the basis of the applicant’s sentence being of such disparity with the third party’s sentence – where the applicant submits the sentence was manifestly excessive because the learned trial judge erred in failing to provide sufficient weight to the cooperation of the applicant – whether the sentence was manifestly excessive because of the applicant’s personal circumstances

Penalties and Sentences Act 1992 (Qld), s 13A

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered
R…

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 DBJ

Details

AGLC: R v DBJ [2015] QCA 247
Case: [2015] QCA 247
Decision Date: 1 December 2015

CaseChat Overview and Summary

In the matter of R v DBJ, the applicant sought leave to appeal against his sentence, arguing it was manifestly excessive. The applicant had pleaded guilty to conspiracy to murder and attempted burglary by breaking in the night. He was sentenced to six and a half years for the conspiracy and two years for the attempted burglary, to be served concurrently. The applicant argued that the sentence was excessive because it was disproportionately higher than the sentence given to the third party involved, and that the trial judge did not sufficiently weigh his cooperation with the administration of justice.

The court examined whether the sentence was manifestly excessive, considering the disparity between the applicant's sentence and the third party's sentence, as well as the weight given to the applicant's cooperation. The court noted that the sentencing judge had acknowledged the applicant's cooperation but found it to be less significant than that of the third party. The court found no basis to conclude that the judge did not appropriately weigh the applicant's cooperation.

The court concluded that the sentence was not manifestly excessive. The disparity in sentences was justified by the differing roles and degrees of involvement of the applicant and the third party. The court also found that the sentencing judge had adequately considered the applicant's cooperation. Therefore, the application for leave to appeal against the sentence was refused.

The final order of the court was that the application for leave to appeal is refused.

Orders

Orders of the court

The application for leave to appeal 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

I do not consider that it can be demonstrated that the sentence imposed here was manifestly excessive.Conclusion For the reasons expressed above I would refuse the application. PHILIPPIDES JA: As Morrison JA has succinctly explained in his reasons for judgment, there can be no reason for complaint that the sentence imposed was manifestly excessive. I agree for the reasons stated by his Honour that the application for leave to appeal against sentence should be refused.

Ratio Decidendi

Legal Principle Established

In the circumstances, I do not consider that the setting of the parole eligibility date at two years and six months, instead of two years and two months (one third of the head sentence), can be said to be manifestly excessive or create a justifiable sense of grievance.Cooperation – insufficient weight? The learned sentencing judge took into account the issue of Mr DBJ’s cooperation. Her Honour said that it was an early plea and “there has been cooperation with the administration of justice”.[15] Her Honour obviously thought the level of cooperation was less than that provided by X and Y: “They both provided significant cooperation and were sentenced in accordance with the provisions of section 13A of the Penalties and Sentences Act 1992 (Qld)”.[16][15]AB 32.[16]AB 33. In paragraph [39] above I have set out part of the submission, made by Mr DBJ’s counsel at the sentencing hearing, in respect of cooperation (aside from saying that the plea of guilty demonstrated cooperation in the administration of justice).[17] The submission continued shortly after with counsel referring to X’s sentence:[18]“That’s not factoring in the fact that my client provided a witness statement to the police because a document, exhibit 4 and exhibit 7, doesn’t take account of any cooperation.HER HONOUR: But did they need his cooperation given what [Y] had advised?MR LYNCH: And I don’t say that my client should get the full extent of whatever might’ve been made available to anyone else. I don’t say that. But it is a significant factor, in my submission. Say, for example, [X] had said, “I’m going to have a trial”, my client was in a position where he would’ve likely been called as a witness, and he obviously signed that document understanding that he was signing a witness statement. So there’s no one left for him to give an undertaking to give evidence against, but he certainly put himself in a position where that was an option that was on the table at the start. So your Honour can only deal with things as they’ve panned out. And there is no opportunity for him to do that, but that, in my respectful submission, is a powerful mitigating feature which doesn’t appear to have been present in [Pandelis], at least, and it’s one of the reasons why my submission is your Honour would consider a sentence of five years imprisonment as the head sentence in my client’s case.”[17]AB 26.[18]AB 28. The learned sentencing judge then demurred to the proposition that five years might be appropriate, prompting this response:[19]“My submission really is that the sentence – or the information concerning [X] contained in exhibit 4 and exhibit 7 might be the starting point and that my client’s cooperation by providing the witness statement is what might bring the sentence down to one closer to five years.”[19]AB 29. Those submissions were evidently taken into account by the learned sentencing judge when she said: “…your counsel has referred to a number of factors which I will take into account, particularly your cooperation…”. I can see no basis on which to conclude that her Honour did not give adequate weight to the submission.

CITATION:	R v DBJ [2015] QCA 247
PARTIES:	R v DBJ (applicant)
FILE NO/S:	CA No 311 of 2014 SC No 98 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 24 November 2014
DELIVERED ON:	1 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 June 2015
JUDGES:	Gotterson and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The 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 pleaded guilty to two counts, being conspiracy to murder and attempted burglary by breaking in the night – where the applicant was sentenced to six and a half years imprisonment on the conspiracy to murder count and two years on the attempted burglary count, with the sentences to be served concurrently – where the applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive – where the applicant married the complainant in 2005 – where the relationship was tumultuous and the applicant and complainant separated in August 2012 – where Family Court proceedings were commenced in November 2012 – where the applicant sought legal advice in relation to said proceedings – where the applicant was told he should meet someone who could “eliminate his problem” – where the applicant enlisted a third party to do some “intimidation work” – where the third party was told to leave the complainant incapable of caring for their children – where the applicant then proceeded to request the complainant be killed – where the applicant suggested it be made to look like a break and enter gone wrong – where the applicant provided the complainant’s address – where the applicant suggested means of undertaking the murder – where the first attempt to undertake the murder did not succeed because the complainant was at home and awake – where the applicant threatened to harm the third party’s family if he did not complete the job – where the second attempt did not succeed because the third party could not gain entry to the complainant’s house – where the third party contacted the police and disclosed some of the offending – where the police became involved and the applicant was subsequently arrested – where the applicant contends the sentence was manifestly excessive on the basis of the applicant’s sentence being of such disparity with the third party’s sentence – where the applicant submits the sentence was manifestly excessive because the learned trial judge erred in failing to provide sufficient weight to the cooperation of the applicant – whether the sentence was manifestly excessive because of the applicant’s personal circumstances Penalties and Sentences Act 1992 (Qld), s 13A Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R…