SUPREME COURT OF QUEENSLAND
CITATION:
R v Delander [2019] QCA 69
PARTIES:
R
v
DELANDER, Matthew
(applicant)FILE NO/S:
CA No 179 of 2018
SC No 1219 of 2017
SC No 572 of 2018DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 14 June 2018 (Davis J)
DELIVERED ON:
26 April 2019
DELIVERED AT:
Brisbane
HEARING DATE:
18 March 2019
JUDGES:
Morrison and McMurdo JJA and Brown J
ORDER:
Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted and sentenced to nine years’ imprisonment with parole eligibility after four and a half years for 15 indictable offences including drug-related and weapons offences – where the applicant contends the sentence is manifestly excessive when regard is had to the parole eligibility date – where the applicant contends the sentence did not adequately reflect the mitigating factors in his case including cooperation with police which lead to the seizure of large stocks of explosives and weapons by police – where the sentencing judge expressly accounted for the mitigating factors by reducing the head sentence below 10 years to avoid the issue of a serious violent offence declaration – whether the sentence failed to adequately account for the mitigating factors, especially the applicant’s cooperation with police – whether reducing the parole eligibility date as well as the head sentence would amount to a “double benefit” for the applicant
Penalties and Sentences Act 1992 (Qld), Part 9A
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Abbott[2017] QCA 57, considered
R v Boyd[2013] QCA 335, considered
R v Carlisle[2017] QCA 258, considered
R v Corbett [2018] QCA 341, considered
R v Feakes [2009] QCA 376, considered
R v MCT [2018] QCA 189, applied
R v Randall [2019] QCA 25, cited
R v Strutt[2017] QCA 195, considered
R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22, considered
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, appliedCOUNSEL:
A Cappellano for the applicant
C N Marco for the respondentSOLICITORS:
Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have read the reasons of Brown J and agree with those reasons and the order her Honour proposes.
McMURDO JA: I agree with Brown J.
BROWN J: The applicant was sentenced for multiple offences on 14 June 2018. The sentencing judge determined that the sentence for unlawful trafficking in dangerous drugs, which was Count 1 of the indictment, would reflect the overall criminality of the applicant’s offending. A sentence of nine years’ imprisonment was imposed in respect of Count 1, with a parole eligibility date fixed after four and a half years.
The applicant has sought…
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- R v Delander [2019] QCA 69
- Case
- [2019] QCA 69
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentence failed to adequately account for the mitigating factors, especially the applicant's cooperation with police, and whether reducing the parole eligibility date as well as the head sentence would amount to a "double benefit" for the applicant. The court noted that the sentencing judge had expressly accounted for the mitigating factors by reducing the head sentence below 10 years to avoid the issue of a serious violent offence declaration. The court found that the applicant had failed to establish that the sentence was manifestly excessive, as there had been no misapplication of principle by the sentencing judge.
The court further noted that the applicant's contention that the present case was not one like that considered in R v Tran; Ex parte Attorney-General (Qld) was incorrect, as the Court of Appeal had found that the applicant's mitigating circumstances did not justify a "double benefit" in the exercise of the sentencing discretion in which both the head sentence and period of parole would be reduced. The court found that there was no legitimate basis upon which to further ameliorate the sentence by fixing a parole eligibility date earlier than would be set pursuant to s 184(2) of the Corrective Services Act 2006 (Qld).
The court ultimately found that the applicant had failed to establish that the sentence was manifestly excessive or inadequate, and therefore dismissed the application for leave to appeal against sentence.
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
His Honour subsequently did set the parole eligibility period at four and a half years, because by force of the legislation the applicant’s offence against the Bail Act 1980 (Qld), which was one of the summary offences of which the applicant was convicted, would have to be served cumulatively upon the nine year sentence on Count 1 of the indictment and the other sentences that were to be served concurrently with that sentence. His Honour did not consider that the applicant should spend further time in custody prior to being eligible for parole as a result of his failure to appear in accordance with an undertaking, and set a parole eligibility date accordingly.Consideration In order to establish that a sentence is manifestly excessive, the Court of Appeal must be satisfied that there “must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.[7] The High Court has noted, “appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”.[8][7]Wong v The Queen (2001) 207 CLR 584 at [58].[8]Wong v The Queen (2001) 207 CLR 584 at [58]. The statement of Morrison JA in R v MCT [2018] QCA 189 at [240] is apposite, namely:“To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”. Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.” (footnotes omitted). The applicant contends that the present case was not one like that considered in the decision of R v Tran; Ex parte Attorney-General (Qld).[9] In that case, the Court found that the applicant’s mitigating circumstances did not justify a “double benefit” in the exercise of the sentencing discretion in which both the head sentence and period of parole would be reduced.[9][2018] QCA 22. The Court of Appeal found that the sentencing judge had erred insofar as, having recognised that the respondent’s conduct in relation to trafficking of methylamphetamine and MDMA over a period of five and half months would have attracted a sentence of 10 years’ imprisonment, the sentencing judge reduced the 10 year sentence to nine years and six months, taking into account the plea of guilty, and then further ordered that the respondent be eligible for parole after serving one third of his sentence, namely three years and two months’ imprisonment. Boddice J (with whom Philippides JA and McMurdo JA agreed) found that, having determined to reduce the head sentence from 10 years to nine and a half years, which meant that the respondent was no longer subject to an automatic declaration which would have required him to serve 80 per cent of the head sentence, there was no legitimate basis upon which to further ameliorate the sentence by fixing a parole eligibility date earlier than would be set pursuant to s 184(2) of the Corrective Services Act 2006 (Qld). His Honour stated that to do so was to extend a double benefit to the respondent.[10] Boddice J at paragraphs 41 and 42 stated: “[41] Whilst a double benefit may, in certain circumstances, be an appropriate exercise of the sentencing discretion, there was no proper basis for affording a double benefit in the present case. The respondent’s plea of guilty was late. He subsequently failed to appear at his initial sentence date. He only appeared in court after being arrested pursuant to a warrant issued as a consequence of his failure to appear at his sentence.[42]Usually, pleas of guilty generally only attract parole eligibility dates at around the one-third mark of a head sentence in circumstances where the plea of guilty is early and accompanied by genuine remorse. There are also often other factors relevant to the exercise of such a discretion, including the youth of the offender and successful steps towards rehabilitation.”[10]R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22 at [40].