R v Doraho

[2011] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v Doraho [2011] QCA 29

PARTIES:

R
v
DORAHO, Omar Bin
(applicant)

FILE NO/S:

CA No 315 of 2010
SC No 90 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

25 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2011

JUDGES:

Margaret McMurdo P and Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence 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 possessing more than 500 grams of the dangerous drug cannabis sativa – where the applicant was sentenced to six months’ imprisonment without early release on parole – where the applicant had a significant criminal history in relation to misusing drugs – whether the sentencing judge failed to take into account the applicant’s plea of guilty – whether the sentencing judge placed too much weight upon the applicant’s criminal history – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the sentencing judge fixed the last day of the sentence as the date for the applicant to be released on parole – whether the sentencing judge gave insufficient reasons for delaying the parole release date beyond the mid point of the sentence – whether the sentencing judge erred in failing to alert counsel to the proposed release date

Penalties and Sentences Act 1992 (Qld), s 13, s 13(4),
s 13(5), s 160B(3), s 160G, s 160G(1)

R v Christie (2000) 115 A Crim R 461; [2000] QCA 165, considered
R v Kennedy [2000] QCA 140, considered
R v Kitson[2008] QCA 86, explained
R v Meid[2006] QCA 124, distinguished
R v Oldfield[1999] QCA 85, considered
R v Smith[2005] QCA 398, distinguished

COUNSEL:

M J Power for the applicant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1]      MARGARET McMURDO P:  I agree with Chesterman JA's reasons for refusing this application for leave to appeal against sentence. 

[2] True it is that the sentence imposed in this case was unusual: a term of six months imprisonment with a parole release date fixed on the last day of that term. But it was a lawful sentence under s 160B(3) and s 160G(1) Penalties and Sentences Act 1992 (Qld). The judge's reasons for this unusual sentence emerge plainly enough from his sentencing remarks in the context of the preceding exchanges between counsel and the judge.

[3]      The applicant's criminal history was highly relevant to the sentence imposed.  It demonstrated that he remained a recidivist marijuana user, despite the lenient sentences previously imposed which…