R v Faf - [2014] QCA 360

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAF [2014] QCA 360

PARTIES:

R
v
FAF
(applicant)

FILE NOS:

CA No 28 of 2014
SC No 463 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2014

JUDGES:

Muir JA and Philip McMurdo and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence is granted.1.

Appeal allowed.2.

For the term of imprisonment imposed for the trafficking offence, a term of imprisonment of eight years is substituted.3.

The serious violent offender declaration is set aside.4.

The parole eligibility date is fixed at the date five years and six months after the commencement of the term of imprisonment.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to trafficking in a dangerous drug – where the Penalties and Sentences Act 1992 (Qld) requires that both past cooperation and future cooperation the subject of an undertaking under s 13A, if applicable, are to be taken into account by the sentencing Judge when imposing sentence – where the applicant submits that the learned sentencing Judge placed insufficient weight on his s 13A undertaking to provide future cooperation – whether the sentence imposed was manifestly excessive

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

R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, considered
R v Boyd[2013] QCA 335, considered
R v Cartwright (1989) 17 NSWLR 243, followed
R vCunniffe [2013] QSC 330, considered
R v de Figueiredo[2013] QCA 303, cited
R v Feakes[2009] QCA 376, considered
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, followed
R v Ly andKyprianou[2008] QCA 149, considered
R vMiller[2013] QCA 346, considered
R v Westphal[2009] QCA 223, considered

COUNSEL:

M J Byrne QC for the applicant
B G Campbell for the respondent

SOLICITORS:

Hannay Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree with the reasons of Peter Lyons J and with the orders he proposes.

PHILIP McMURDO J: I agree with the orders proposed and the reasons to be published by Peter Lyons J.

PETER LYONS J: These abbreviated reasons record for publication some aspects of the Court's reasoning in this case.

The applicant pleaded guilty to a charge of trafficking in cocaine. The trafficking occurred over a period substantially in excess of a year. Information about the extent of the trafficking is unreliable, but the gross proceeds might indicatively be regarded as falling between $300,000 and $400,000; and the total quantity, again indicatively, in excess of a kilogram. Sales were to end…

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 Faf

Details

AGLC: R v FAF [2014] QCA 360
Case: [2014] QCA 360
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the applicant, who had pleaded guilty to a charge of trafficking in a dangerous drug. The court of appeal was required to determine whether the sentence imposed by the sentencing judge was manifestly excessive or inadequate, in light of the provisions of the Penalties and Sentences Act 1992 (Qld), which required the sentencing judge to take into account any past or future cooperation by the applicant. The applicant argued that the sentencing judge did not give sufficient weight to his undertaking to provide future cooperation under s 13A of the Act.

The court of appeal found that the applicant's arguments had merit and that the sentence imposed by the sentencing judge was manifestly excessive. The court found that the sentencing judge had failed to give sufficient weight to the applicant's undertaking to provide future cooperation, and that this was a material consideration that ought to have been taken into account when imposing sentence. The court also found that the declaration of the applicant as a serious violent offender was not appropriate in the circumstances, and that the parole eligibility date should be fixed at a later date than that set by the sentencing judge.

The court of appeal allowed the appeal against sentence and substituted a term of imprisonment of eight years for the trafficking offence. The serious violent offender declaration was set aside, and the parole eligibility date was fixed at five years and six months after the commencement of the term of imprisonment. The application for leave to appeal against sentence was granted.

Orders

Orders of the court

Application for leave to appeal against sentence is granted.1.

Appeal allowed.2.

For the term of imprisonment imposed for the trafficking offence, a term of imprisonment of eight years is substituted.3.

The serious violent offender declaration is set aside.4.

The parole eligibility date is fixed at the date five years and six months after the commencement of the term of imprisonment.5.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v FAF [2014] QCA 360
PARTIES:	R v FAF (applicant)
FILE NOS:	CA No 28 of 2014 SC No 463 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2014
JUDGES:	Muir JA and Philip McMurdo and Peter Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence is granted.1. Appeal allowed.2. For the term of imprisonment imposed for the trafficking offence, a term of imprisonment of eight years is substituted.3. The serious violent offender declaration is set aside.4. The parole eligibility date is fixed at the date five years and six months after the commencement of the term of imprisonment.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to trafficking in a dangerous drug – where the Penalties and Sentences Act 1992 (Qld) requires that both past cooperation and future cooperation the subject of an undertaking under s 13A, if applicable, are to be taken into account by the sentencing Judge when imposing sentence – where the applicant submits that the learned sentencing Judge placed insufficient weight on his s 13A undertaking to provide future cooperation – whether the sentence imposed was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(h), s 13A R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, considered R v Boyd[2013] QCA 335, considered R v Cartwright (1989) 17 NSWLR 243, followed R vCunniffe [2013] QSC 330, considered R v de Figueiredo[2013] QCA 303, cited R v Feakes[2009] QCA 376, considered R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, followed R v Ly andKyprianou[2008] QCA 149, considered R vMiller[2013] QCA 346, considered R v Westphal[2009] QCA 223, considered
COUNSEL:	M J Byrne QC for the applicant B G Campbell for the respondent
SOLICITORS:	Hannay Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent