R v Freeman

Case [2019] QCA 150

SUPREME COURT OF QUEENSLAND

CITATION:

R v Freeman [2019] QCA 150

PARTIES:

R
v
FREEMAN, Michael
(applicant)

FILE NO/S:

CA No 12 of 2019
SC No 296 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 21 December 2018 (Boddice J)

DELIVERED ON:

2 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2019

JUDGES:

Fraser JA and Applegarth and Bradley JJ

ORDERS:

1.   Dismiss the application to adduce the evidence of the affidavits of Michael James Freeman and Jennifer Mary Freeman filed on 28 June 2019.

2.   Grant the application to adduce the evidence of the affidavit of Shaune Kerry Irving filed on 28 June 2019.

3.   Dismiss the application for leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to four years’ and six months’ imprisonment with a non-parole period of two years and six months for attempting to possess a marketable quantity of a border controlled drug, and six months’ imprisonment for failing to comply with an order to assist access – where the applicant contends the sentence did not take adequate account of his wife’s ill health and the hardship caused to her by his imprisonment because insufficient information was placed before the sentencing judge – where the applicant also submits that the sentencing judge erred in finding his plea of guilty was very late and contends it was entered at the first reasonable opportunity – where the indictment charging the applicant with the offences to which he pleaded guilty was presented two years before his pleas – where the applicant pleaded guilty to two counts on the eve of his trial on the basis that a third count would be discontinued – whether the applicant’s plea of guilty was entered at the first reasonable opportunity – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where the applicant applies for leave to adduce further evidence about his wife’s health and the hardship caused to his family by his imprisonment – where the relevance of the material is the applicant’s wife’s inability to carry on a business on her own – where the material is about a matter known to the applicant at the time of sentencing – where the reason the applicant did not tell his former legal representatives about the additional hardship remains unexplained – whether there will be a miscarriage of justice if the evidence is excluded

Crimes Act 1914 (Cth), s 16A(2)(p)

Atholwood v The Queen (1999) 109 A Crim R 465; [1999] WASCA 256, considered
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, distinguished
Maybus v The Queen [2017] VSCA 125, cited
R v Edwards (1996) 90 A Crim R 510, cited
R v Girard [2004] NSWCCA 170,…

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Details
AGLC
R v Freeman [2019] QCA 150
Case
[2019] QCA 150
Decision Date

CaseChat Overview and Summary

The case of R v Freeman involved the applicant appealing against his sentence of four years and six months’ imprisonment with a non-parole period of two years and six months for attempting to possess a marketable quantity of a border controlled drug, and six months’ imprisonment for failing to comply with an order to assist access. The applicant argued that the sentence did not take adequate account of his wife’s ill health and the hardship caused to her by his imprisonment because insufficient information was placed before the sentencing judge. The applicant also contended that the sentencing judge erred in finding his plea of guilty was very late and submitted it was entered at the first reasonable opportunity. The case was heard by the Queensland Court of Appeal.

The court was required to decide whether the applicant’s plea of guilty was entered at the first reasonable opportunity, and whether the sentence was manifestly excessive or inadequate. The court also had to determine whether there would be a miscarriage of justice if the evidence about the applicant’s wife’s health and the hardship caused to his family by his imprisonment was excluded.

The court found that the applicant’s plea of guilty was not entered at the first reasonable opportunity as the indictment charging the applicant with the offences was presented two years before his pleas. The court also found that the sentence was not manifestly excessive, as the sentencing judge had considered the aggravating feature of the additional offence of failing to comply with the direction. Regarding the evidence about the applicant’s wife’s health and the hardship caused to his family, the court held that it was not relevant to the sentencing decision and that its exclusion would not result in a miscarriage of justice.

The court dismissed the application to adduce the evidence of the affidavits of Michael James Freeman and Jennifer Mary Freeman. The court granted the application to adduce the evidence of the affidavit of Shaune Kerry Irving. Finally, the court dismissed the application for leave to appeal against sentence.

Orders

Orders of the court

1. Dismiss the application to adduce the evidence of the affidavits of Michael James Freeman and Jennifer Mary Freeman filed on 28 June 2019.

2. Grant the application to adduce the evidence of the affidavit of Shaune Kerry Irving filed on 28 June 2019.

3. Dismiss the application for leave to appeal against sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ultimately, the sentencing judge did not accept that a sentence as low as four years was appropriate. One factor was that the additional offence of failing to comply with the direction was an aggravating feature which should result in some punishment. A sentence of five years’ imprisonment was said to be higher than would properly reflect the applicant’s overall criminality. In the result, a sentence of four years and six months’ imprisonment was imposed. A concurrent sentence of six months was imposed on count 2.The application for leave to adduce evidence The applicant seeks leave to rely upon affidavit evidence from him and his wife about his wife’s health and the hardship caused to his family by his imprisonment. He also seeks to rely upon an affidavit from his present solicitors about the circumstances under which the matter was resolved on 16 October 2018 by an exchange of emails. As to the applicant’s wife’s health and the effect of being imprisoned on her, the applicant says that he cannot recall if he spoke to his barrister or solicitor about that “in any detail”. He deposes that he understands that the health concerns of his wife and hardship to her are usually relevant only in exceptional circumstances, but contends that his case is an exceptional one. His affidavit and his wife’s affidavit are to the effect that for at least the last five years he has been his wife’s carer. She suffers from a number of conditions which affect her mobility. The applicant’s evidence is that prior to his imprisonment, he was effectively his wife’s carer and was responsible for housework. He also says that he was responsible for all of “the lifting in the business including often lifting heavy commercial bags of flour within our family business”. The applicant’s wife’s affidavit says that prior to her husband’s imprisonment, they ran a business that had a lot of heavy lifting and transportation, that her husband did all of that physical work and that she is unable to complete those tasks. Because they cannot afford to take on another employee to do those things, she is attempting to do them, but cannot get all the work done and that as a result “the business is failing”. The business is said to be her only source of income and she fears that when it fails they will fall behind in rental payments[2] and lose their house. She says that other family members have their own busy lives and cannot help her.[2]Her affidavit refers to mortgage repayments, but this error was not noted by counsel for the applicant. The reception of evidence of the kind contained in the applicant’s affidavit and the affidavit of his wife depends on whether, if it were excluded, there would be a miscarriage of justice.[3] There is no requirement that the significance of the evidence was not realised by the applicant at the time of the sentencing hearing and that its existence was not known to the applicant’s legal advisors at that time. Where, however, those conditions are absent, such evidence will usually not be received.[4][3]R v Maniadis [1997] 1 Qd R 593 at 597.[4]Ibid.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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