R v Filho - [2003] QCA 223

SUPREME COURT OF QUEENSLAND

CITATION:
R v Filho [2003] QCA 223

PARTIES:
R
v
FILHO, Agenor Rodrigues
(applicant)

FILE NO/S:
CA No 9 of 2003
DC No 86 of 1996

DIVISION:
Court of Appeal

PROCEEDING:
Application for Extension (Sentence)

ORIGINATING COURT:
District Court at Mackay

DELIVERED EX TEMPORE ON:
2 June 2003

DELIVERED AT:
Brisbane

HEARING DATE:
2 June 2003

JUDGES:
McMurdo P, Davies JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
1. Application for Extension (Sentence) refused
2. Declare that in giving effect to the sentence imposed on the applicant in the Supreme Court of Mackay on 24 July 1996, the applicant is entitled to have the period of 47 days from 7 June 1996 – 24 July 1996 declared as time served as part of that sentence

CATCHWORDS:
CRIMINAL LAW – JUDGMENT AND PUNISHMENT - SENTENCE - PLEA OF GUILTY, CONTRITION AND CO-OPERATION - where applicant convicted of importing prohibitive substance and sentenced to 15 years imprisonment with recommendation for parole after 7 ½ years - where maximum penalty life imprisonment – where applicant co-operated with authorities including giving evidence against co-offenders - whether declaration under s 161 Penalties and Sentences Act 1992 (Qld) should have been made at sentence to recognise time already served - whether sentence manifestly excessive in all the circumstances

Crimes Act 1914 (Cth), s 19AB
Penalties and Sentences Act 1992 (Qld), s 161

R v Ferriera [2002] QCA 12; CA No 318 of 2001, 4 February 2002; considered
R v Salles [2003 QCA 127; CA No 10 of 2003, 20 March 2003, considered
R v Tai Ka Kin; R v Chan Chee Hong; CA Nos 287 and 288 of 1989, 15 December 1989, applied

COUNSEL:
The applicant appeared on his own behalf
G C Davey for the respondent

SOLICITORS:
The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

THE PRESIDENT: The applicant applies for an extension of time within which to apply for leave to appeal against his sentence imposed in the Supreme Court sitting at Mackay on 24 July 1996. He was sentenced to 15 years' imprisonment with a recommendation for parole after seven-and-a-half years.

The applicant represents himself today. He is a Brazilian national and his first language is Portuguese, not English. He has, however, been incarcerated within the Queensland prison system since 1996 and he has been able to articulate his contentions clearly and effectively in his written and oral submissions to us today.

He contends that a declaration under section 161 Penalties andSentences Act 1992 (Qld) ("the Queensland Act") should have been made at his sentence to recognise the time he has served in pre-sentence custody. He also contends that his cooperation with the authorities including giving evidence against his co-offenders and his plea of guilty were not sufficiently recognised, making his sentence manifestly excessive.

The applicant has a substantial difficulty in this application because, like…

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 Filho

Details

AGLC: R v Filho [2003] QCA 223
Case: [2003] QCA 223
Decision Date: 2 June 2003

CaseChat Overview and Summary

In the case of R v Filho, the applicant was convicted of importing a prohibitive substance and was sentenced to 15 years imprisonment with a recommendation for parole after 7 ½ years by the Supreme Court of Mackay. The maximum penalty for this offence is life imprisonment. The applicant had entered a plea of guilty, shown contrition, and co-operated with the authorities, including providing evidence against co-offenders. The applicant sought an extension of sentence on the grounds that a declaration under section 161 of the Penalties and Sentences Act 1992 (Qld) should have been made at the time of sentencing to recognise the time already served, and that the sentence was manifestly excessive in all the circumstances.

The court had to determine whether a declaration should have been made at the time of sentencing to recognise the time already served by the applicant, as well as whether the sentence was manifestly excessive in all the circumstances. The court considered the applicant's cooperation with authorities, the seriousness of the offence, and the need for general deterrence. The court held that the sentence was not manifestly excessive, but that a declaration should have been made under section 161 of the Penalties and Sentences Act 1992 (Qld) to recognise the time already served by the applicant.

The court declined to grant an extension of sentence, but did declare that in giving effect to the sentence imposed on the applicant in the Supreme Court of Mackay on 24 July 1996, the applicant is entitled to have the period of 47 days from 7 June 1996 to 24 July 1996 declared as time served as part of that sentence. The court emphasised that the sentence was not manifestly excessive, but that the declaration was necessary to recognise the time already served by the applicant. The court also noted that the applicant had shown contrition and co-operated with authorities, which were factors that were taken into account when imposing the sentence.

Orders

Orders of the court

1. Application for Extension (Sentence) refused

2. Declare that in giving effect to the sentence imposed on the applicant in the Supreme Court of Mackay on 24 July 1996, the applicant is entitled to have the period of 47 days from 7 June 1996 – 24 July 1996 declared as time served as part of that sentence

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

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CITATION:	R v Filho [2003] QCA 223
PARTIES:	R v FILHO, Agenor Rodrigues (applicant)
FILE NO/S:	CA No 9 of 2003 DC No 86 of 1996
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Mackay
DELIVERED EX TEMPORE ON:	2 June 2003
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2003
JUDGES:	McMurdo P, Davies JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for Extension (Sentence) refused 2. Declare that in giving effect to the sentence imposed on the applicant in the Supreme Court of Mackay on 24 July 1996, the applicant is entitled to have the period of 47 days from 7 June 1996 – 24 July 1996 declared as time served as part of that sentence
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT - SENTENCE - PLEA OF GUILTY, CONTRITION AND CO-OPERATION - where applicant convicted of importing prohibitive substance and sentenced to 15 years imprisonment with recommendation for parole after 7 ½ years - where maximum penalty life imprisonment – where applicant co-operated with authorities including giving evidence against co-offenders - whether declaration under s 161 Penalties and Sentences Act 1992 (Qld) should have been made at sentence to recognise time already served - whether sentence manifestly excessive in all the circumstances Crimes Act 1914 (Cth), s 19AB Penalties and Sentences Act 1992 (Qld), s 161 R v Ferriera [2002] QCA 12; CA No 318 of 2001, 4 February 2002; considered R v Salles [2003 QCA 127; CA No 10 of 2003, 20 March 2003, considered R v Tai Ka Kin; R v Chan Chee Hong; CA Nos 287 and 288 of 1989, 15 December 1989, applied
COUNSEL:	The applicant appeared on his own behalf G C Davey for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent