R v Fabre - [2019] QCA 78

[2019] QCA 78

COURT OF APPEAL

SOFRONOFF P
FRASER JA
MULLINS J

CA No 350 of 2018
DC No 105 of 2018
DC No 465 of 2018
DC No 494 of 2018
DC No 495 of 2018

THE QUEEN

FABRE, Hugo Charles Applicant

BRISBANE

TUESDAY, 7 MAY 2019

JUDGMENT

MULLINS J: Mr Fabre applies for leave to appeal against the sentences imposed on him in the District Court on 3 December 2018 on the ground the sentences are manifestly excessive. He pleaded guilty to two counts of supplying schedule 1 drugs (counts 1 and 2) and one count of possessing things (a mobile phone and digital scales) used in connection with supplying a dangerous drug (count 3) and four summary charges.

He was sentenced to two years’ imprisonment for each of the supplies and four months’ imprisonment for the possessing things. In relation to the four summary charges, he had failed to appear before the Magistrates Court on 27 June 2018 in respect of one of the summary charges to which he ultimately pleaded guilty on 3 December 2018. On the summary charge of failure to appear in accordance with undertaking, he was sentenced to three months’ imprisonment. On each of the other summary charges, (two charges of breach of bail condition and one charge of possess property suspected of having been acquired for the purpose of committing a drug offence), he was sentenced to one month’s imprisonment. Apart from the sentence for the failure to appear, which was cumulative by virtue of section 33(4) of the Bail Act 1980 (Qld), these sentences were concurrent. A pre-sentence custody declaration was made in respect of the period of 67 days spent in pre-sentence custody between 27 September 2018 and 2 December 2018, which applied to each of the concurrent sentences.

The learned sentencing judge also had to deal with two suspended terms of imprisonment, of three months and 14 days, imposed in the Maroochydore Magistrates Court on 31 January 2018 and 14 May 2018 respectively, as one of the charges (failure to appear on 27 June 2018 in accordance with undertaking) was committed during the operational period of both suspended terms of imprisonment and two summary charges (breach of bail condition on 12 May 2018 and 19 May 2018) were committed during the operational period of the first suspended term of imprisonment. These suspended terms were activated in full by the sentencing judge. The imprisonment of 14 days had been imposed for failure to appear on 24 May 2018 in accordance with undertaking and therefore, pursuant to section 33(4) of the Bail Act 1980, had to be served cumulatively on the other sentences imposed on 3 December 2018.

Mr Fabre was also dealt with for a contravention of probation order in respect of the probation order for a period of two years imposed in the District Court on 6 February 2018. The probation order was revoked and Mr Fabre sentenced to 10 months’ imprisonment that was concurrent with the other…

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 Fabre

Details

AGLC: R v Fabre [2019] QCA 78
Case: [2019] QCA 78
Decision Date: 7 MAY 2019

CaseChat Overview and Summary

In the case of the Queen v Fabre, Hugo Charles, the applicant, Fabre, sought leave to appeal against the sentences imposed on him by the District Court on 3 December 2018, arguing that the sentences were manifestly excessive. Fabre pleaded guilty to multiple charges, including drug supply and possession, as well as summary charges. He was sentenced to a total effective term of two years, three months, and 14 days of imprisonment, with a parole release date set after serving 44 per cent of his sentence. The primary issue before the court was whether the sentence imposed was manifestly excessive, particularly in relation to the setting of the parole release date.

The court considered the sentencing remarks made by the District Court judge, which highlighted the need to address Fabre's drug addiction and the need for parole supervision. The court acknowledged that although Fabre had pleaded guilty, his cooperation had been limited, and he had a history of reoffending despite previous opportunities for rehabilitation. The court observed that the fixing of the parole release date after 44 per cent of the sentence had been served was not an invariable rule, and in this case, did not constitute an error of principle. The court also noted that the total sentence, when considered as a whole, was not manifestly excessive.

The Court of Appeal found that there was no error of principle in the sentencing judge’s reasoning and that the parole release date, while longer than usual, did not make the overall sentence manifestly excessive. Therefore, the application for leave to appeal was refused.

The order of the Court is that the application for leave to appeal is refused.

Orders