R v Fitzgerald - [2015] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fitzgerald [2015] QCA 93

PARTIES:

R
v
FITZGERALD, Chase Dillan
(applicant)

FILE NO/S:

CA No 2 of 2015
SC No 62 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville – Unreported, 27 November 2014

DELIVERED EX TEMPORE ON:

25 May 2015

DELIVERED AT:

Cairns

HEARING DATE:

25 May 2015

JUDGES:

Holmes and Morrison JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was convicted and sentenced on his plea of guilty to one count of trafficking, three counts of supply and one count of possession – where the applicant was sentenced to seven years imprisonment on the trafficking count with a parole eligibility date fixed at three years – where the applicant received lesser sentences on the other charges, and all terms of imprisonment were to be served concurrently – where the applicant was charged in 2009 and was granted bail – where the applicant absconded for three and a half years – where the applicant had returned to Queensland and was preparing to surrender to the police when he was arrested – where the applicant had formed a relationship and had become the father of two children – where the applicant had not offended during the period of absconding, except for the offences resulting from his failure to appear – whether the sentence was manifestly excessive because insufficient weight was given to the prospect of rehabilitation, the aspect of rehabilitation and its impact on the parole eligibility date

R v Alt (2013) 236 A Crim R 486; [2013] QCA 343, cited
R v Davis[2012] QCA 324, cited
R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited
R v Willoughby[2009] QCA 105, cited

COUNSEL:

J Trevino for the applicant
M Cowan QC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: On 27 November 2014 Mr Fitzgerald was convicted and sentenced on his plea of guilty to: one count of trafficking in 3,4-Methylenedioxymethamphetamine (MDMA or ecstasy) over a period between 1 December 2008 and 25 September 2009; three counts of supplying Methylamphetamine; and one count of possession of MDMA in excess of two grams.
He was sentenced to seven years imprisonment on the trafficking count. A parole eligibility date was fixed at three years. After taking into account 376 days in pre-sentence custody that set the date at 16 November 2016.
On the supply counts he received lesser sentences, one of two years and two of 18 months. On the possession count he received three years. All those terms were to be served concurrently with the trafficking sentence.
Mr Fitzgerald…

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 Fitzgerald

Details

AGLC: R v Fitzgerald [2015] QCA 93
Case: [2015] QCA 93
Decision Date: 25 May 2015

CaseChat Overview and Summary

The case of R v Fitzgerald involved the applicant appealing against his sentence, specifically challenging the length and parole eligibility date. Mr Fitzgerald was convicted and sentenced on his plea of guilty to one count of trafficking, three counts of supply, and one count of possession. The central issue was whether the sentence was manifestly excessive due to insufficient consideration of the prospect of rehabilitation and its impact on the parole eligibility date.

The legal issues before the court were whether the sentencing judge had properly assessed the mitigating factors, including the prospect of rehabilitation, and whether these factors warranted a more lenient sentence and earlier parole eligibility. The applicant's counsel argued that factors such as his relationship, fatherhood, return to Queensland to surrender, and absence of offending during his absconding period should have resulted in a reduced custodial term. Conversely, the prosecutor maintained that the delay in sentencing was solely due to the applicant's absconding, thus not warranting any mitigating considerations.

The court examined the sentencing judge's comments and found that the judge had indeed considered the applicant's absconding, return, relationship, and lack of offending during the period of absconding. However, the judge also highlighted the need for general and personal deterrence, and denunciation, which outweighed the mitigating factors in this case. The court concluded that the sentencing judge did not err in his assessment and that the sentence was not manifestly excessive.

In light of this, the application for leave to appeal against the sentence was refused. The court found that the sentencing judge had appropriately balanced the mitigating factors against the need for deterrence and denunciation. The sentence of seven years imprisonment with a parole eligibility date fixed at three years was upheld as appropriate given the nature and extent of the applicant's criminal conduct.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

The issue raised by the application is, therefore, was the sentence manifestly excessive because insufficient weight was given to the prospect of rehabilitation, the aspects of rehabilitation, and its impact on the parole eligibility date.Background Mr Fitzgerald was about 20 years old when he committed the offences, and 26 at sentence. He had a criminal history in New South Wales that consisted of minor and irrelevant offences. His Queensland history consisted only of the failure to appear offences and breaches of bail as a result of his absconding. The offences involved Mr Fitzgerald acting as a middleman, arranging several couriers to transport and supply large quantities of MDMA tablets, sometimes interstate. One courier was found in possession of about 5,000 tablets, telephone intercepts revealed sales of 3,000 or 4,000 ecstasy tablets being discussed, at prices of between $10 and $13 per tablet. The supply counts involved Mr Fitzgerald selling large quantities of methylamphetamine, in one case a pound for $26,000, and in another, half a pound for $15,000. Mr Fitzgerald participated in three police interviews. He explained that he was a middleman who organised large sales of 4,000 or 5,000 ecstasy tablets. In the first interview he said that he did not receive anything in return for his involvement, and that ecstasy pills found at his property did not belong him. He maintained that in his second interview. In the third interview he finally conceded that the pills were his. An analysis of financial records revealed unsourced income of $56,154 for the period between 1 December 2008 and 4 July 2009. There was no suggestion that Mr Fitzgerald was an addict. His involvement, then, was purely commercial.Submissions on the impact of rehabilitation The question of rehabilitation was the subject of submissions by both the prosecutor and counsel for Mr Fitzgerald. For the prosecutor, it was submitted that were no mitigating factors (necessarily including rehabilitation) arising from the delay in proceeding to sentence, because was solely due to Mr Fitzgerald’s absconding. R v Willoughby[1] was relied upon.[1]R v Willoughby [2009] QCA 105 at [45] and [48]. Counsel for Mr Fitzgerald raised these matters relevant to the period after the offences:[2]·Mr Fitzgerald had been mostly in New South Wales since he absconded;·he had formed a relationship as a result of which he was the father of two children, aged five and two;·he had returned to Queensland with the aim of giving himself up to police;·he had not offended during that period of about three and a half years, except for those offences resulting from his failure to appear.[2]AB 21. Mr Fitzgerald’s counsel ultimately submitted that the mitigating factors, including those listed above, should result in his only being required to serve one third of the sentence period in actual custody.[3][3]AB 23.The sentencing judge’s comments on mitigating factors including rehabilitation The sentence followed immediately after the conclusion of the submissions from Mr Fitzgerald’s counsel. His Honour noted the following features:·Mr Fitzgerald had absconded but was now in a relationship;[4]·he had returned to Queensland to surrender, which showed some maturity upon his part, and a preparedness to face up to the consequences of his actions;[5]·the lack of any relevant criminal history;·the failure to make full and frank disclosures to police,[6] and cooperation limited to bringing the matter to court after the period of absconding;[7]·the sentence had to take into account any reasonable prospect of rehabilitation, but general and personal deterrence, and denunciation, was called for.[8][4]AB 26.[5]AB 26, 27.[6]AB 27.[7]AB 26.[8]AB 27.Discussion - the impact of delay and rehabilitation

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do not consider that it has been demonstrated that the sentencing judge erred.Conclusion I would refuse the application. HOLMES JA: I agree. HENRY J: I also agree. HOLMES JA: The application for leave to appeal against sentence is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Fitzgerald [2015] QCA 93
PARTIES:	R v FITZGERALD, Chase Dillan (applicant)
FILE NO/S:	CA No 2 of 2015 SC No 62 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Townsville – Unreported, 27 November 2014
DELIVERED EX TEMPORE ON:	25 May 2015
DELIVERED AT:	Cairns
HEARING DATE:	25 May 2015
JUDGES:	Holmes and Morrison JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where the applicant was convicted and sentenced on his plea of guilty to one count of trafficking, three counts of supply and one count of possession – where the applicant was sentenced to seven years imprisonment on the trafficking count with a parole eligibility date fixed at three years – where the applicant received lesser sentences on the other charges, and all terms of imprisonment were to be served concurrently – where the applicant was charged in 2009 and was granted bail – where the applicant absconded for three and a half years – where the applicant had returned to Queensland and was preparing to surrender to the police when he was arrested – where the applicant had formed a relationship and had become the father of two children – where the applicant had not offended during the period of absconding, except for the offences resulting from his failure to appear – whether the sentence was manifestly excessive because insufficient weight was given to the prospect of rehabilitation, the aspect of rehabilitation and its impact on the parole eligibility date R v Alt (2013) 236 A Crim R 486; [2013] QCA 343, cited R v Davis[2012] QCA 324, cited R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited R v Willoughby[2009] QCA 105, cited
COUNSEL:	J Trevino for the applicant M Cowan QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent