R v Ferreira - [2002] QCA 12

[2002] QCA 12

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
DOUGLAS J

CA No 318 of 2001

THE QUEEN

JOSE PIRES FERREIRA Applicant

BRISBANE

..DATE 04/02/2002

JUDGMENT

McPHERSON JA: This is an application by Jose Pires Ferreira, who is a citizen and some time resident of Brazil, to extend the time for applying for leave to appeal against his sentence of imprisonment imposed on 24 July 1996 in the Supreme Court at Mackay. There is also an application in the alternative for leave to withdraw a notice dated 18 October 1996 of abandonment of an earlier appeal or application for leave to appeal against the sentence.

The sentence imposed was one of imprisonment for 19 years with a non-parole period of nine and a half years. The offence to which the applicant pleaded guilty was the importation of cocaine contrary to the provisions of s.233B of the Customs Act 1901 (Cth). The quantity imported was very large indeed involving a total of 14.870 kilograms of pure cocaine having a wholesale value estimated at some 1.8 million dollars and a retail or street value some five or six times that amount.

It was brought ashore in daylight from a ship that had docked at the Port of Mackay by three members of the crew, of whom the applicant was one. The astuteness of a watchman on the wharf who informed police of his suspicions was responsible for the offenders being apprehended very shortly after they came ashore and they were caught with the cocaine still in their possession.

It is convenient to dispose at once of one of the grounds relied on to support the application. It is that the sentencing Judge failed to comply with s.13 of the Penalties and Sentences Act 1992, which requires a Court in sentencing to take into account that the offender has pleaded guilty.

I have no doubt that his Honour, in sentencing the applicant, did take the guilty plea into account. Moreover, he said specifically that the sentence was being reduced from 22 years imprisonment to 19 years with a non-parole period of 19 and a half years because the applicant had promised to cooperate in the trial of one of the other co-offenders, who was a man named Salles.

It is nevertheless said that his Honour failed to comply with s.13(3) of the Act which requires the sentencing Judge to announce in open court that the guilty plea has been taken into account. That, however, is a requirement of a State Act. The applicant is a federal offender, so that the sentencing process in his case was regulated by the provisions of s.16A of the Crimes Act 1914 (Cth).

Section 16A(2) of that Act prescribes matters to be taken into account in sentencing a federal offender of which by the paragraph I have mentioned a plea of guilty is one. It says nothing about requiring any of the matters in section 16A(2) to be announced in open court.

In any…

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 Ferreira

Details

AGLC: R v Ferreira [2002] QCA 12
Case: [2002] QCA 12
Decision Date: 04/02/2002

CaseChat Overview and Summary

The case of R v Ferreira is an application by Jose Pires Ferreira, a Brazilian citizen and resident, to extend the time for applying for leave to appeal against a sentence of imprisonment imposed by the Supreme Court at Mackay on 24 July 1996. The applicant, who pleaded guilty to the importation of cocaine, was sentenced to 19 years imprisonment with a non-parole period of nine and a half years. The court was required to determine whether the application should be granted, considering the delay in making the application and the reasons provided by the applicant for the delay.

The court considered several issues in the case. First, the court examined whether the sentencing judge failed to comply with s.13 of the Penalties and Sentences Act 1992 by not announcing that the offender's guilty plea was taken into account. The court concluded that the sentencing judge did consider the guilty plea, and that there was no requirement under the Crimes Act 1914 (Cth) to announce the guilty plea in open court. The court also assessed whether the sentence was excessive, comparing it with sentences imposed on other co-offenders and with sentences for similar offences. The court found that the sentence was appropriate given the circumstances of the case and the amount of cocaine imported.

The court also considered the applicant's reasons for the delay in making the application, including his belief that he could appeal at any time after being sentenced and his difficulties with understanding English at the time. The court was not persuaded that these reasons justified granting the application. The court also examined the applicant's claim that he was placed in a difficult position in prison due to his cooperation with police, but found that this was a matter for the parole authority, not the court.

The court concluded that the application should be refused, but agreed to make a declaration that the 47 days the applicant spent in pre-sentence custody should be taken into account by way of reduction or as time served under the sentence imposed. The Chief Justice, McPherson JA, and Douglas JA all agreed with the decision and the reasons provided by McPherson JA. The orders of the court were as indicated by McPherson JA.

Orders