R v Fischer - [2020] QCA 66

[2020] QCA 66

COURT OF APPEAL

SOFRONOFF P
BODDICE J
WILLIAMS J

CA No 281 of 2018
SC No 1387 of 2018
SC No 1429 of 2018

THE QUEEN

FISCHER, Ty Jordan Applicant

BRISBANE

TUESDAY, 7 APRIL 2020

JUDGMENT

SOFRONOFF P: The applicant pleaded guilty to the following offences: one count of trafficking in dangerous drugs, between March and November 2016; nine counts of unlawfully supplying weapons, including category H weapons; four counts of unlawful possession of weapons, including category H weapons; four counts of possession of dangerous drugs; four counts of possession of property obtained from trafficking; one count of receiving tainted property; one count of unlawful possession of a motor vehicle; two counts of unlawful use of a motor vehicle; one count of dealing with identification information; and one count of forgery.

On 28 September 2018, Justice Bond sentenced the applicant to imprisonment for nine years and eight months for the trafficking offence. His Honour declared the offence to be a serious violent offence. Lesser concurrent sentences were imposed for the other offences.

By committing the trafficking offence, the applicant breached the terms of certain suspended sentences that had been imposed upon him on 10 February 2016 in the Caboolture Magistrates Court. Justice Bond ordered that those suspended sentences be served concurrently with each other and with the sentences that his Honour had imposed.

Some of the offences had been committed while the applicant was the subject of a parole order made by Judge Devereaux SC on 8 September 2015. This rendered the applicant liable to serve the period for which he had been at large after the commission of the first relevant offence while on parole. That offence was the trafficking offence that had begun to be committed on 23 March 2016. The period thus activated was from 23 March 2016 until the applicant’s parole was suspended on 2 August 2016, which was a period of four months and eight days. In accordance with section 156A of the Penalties and Sentences Act 1992 (Qld), Justice Bond ordered the applicant to begin serving the sentences that his Honour had imposed after the applicant had served that period of four months and eight days.

Between 19 September 2016, when the applicant was returned to custody, and the date of the current sentences being imposed, he spent 693 days, which is just over 23 months, in custody, and that period was not declarable, because it involved other offences.

The result of all of this, the applicant submits, is that he must serve just over 10 years before he becomes eligible for parole. An analysis of the cases in which offenders have pleaded guilty to substantial trafficking in schedule one drugs, after invoking factors in mitigation, show that offenders have commonly been sentenced to periods of imprisonment of between 10 and 12 years: see for example R v Safi [2015] QCA 13. In one case, this Court observed that, absent extraordinary circumstances, in such cases:

“... mature offenders who…

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 Fischer

Details

AGLC: R v Fischer [2020] QCA 66
Case: [2020] QCA 66
Decision Date: 7 APRIL 2020

CaseChat Overview and Summary

In the case of R v Fischer, the applicant, Ty Jordan Fischer, appealed against the sentences imposed by Justice Bond, contending that they were excessive and that the Judge erred in making a serious violent offence declaration. The applicant pleaded guilty to numerous serious offences, including trafficking in dangerous drugs, unlawful supply and possession of weapons, possession of dangerous drugs, possession of property obtained from trafficking, receiving tainted property, unlawful possession and use of a motor vehicle, dealing with identification information, and forgery. The Court of Appeal was tasked with determining whether the sentences imposed were manifestly excessive, whether the declaration of a serious violent offence was appropriate, and whether there were any other grounds for setting aside the sentences. The Court of Appeal found that the sentences imposed were not manifestly excessive, and that the serious violent offence declaration was appropriate. The Court of Appeal concluded that the applicant's contentions were without merit, and dismissed the appeal.

The legal issues before the Court of Appeal were whether the sentences imposed by Justice Bond were manifestly excessive, whether the serious violent offence declaration was appropriate, and whether there were any other grounds for setting aside the sentences. The Court of Appeal found that the sentences imposed were not manifestly excessive, and that the serious violent offence declaration was appropriate. The Court of Appeal noted that the applicant's offending was very serious, involving substantial trafficking in dangerous drugs, possession and supply of firearms, and other offences. The Court of Appeal found that the sentences imposed were within the range of sentences that had been imposed in similar cases, and that the serious violent offence declaration was appropriate given the seriousness of the offending. The Court of Appeal concluded that the applicant's contentions were without merit, and dismissed the appeal.

Orders