R v Gopurenko - [2014] QCA 255

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gopurenko [2014] QCA 255

PARTIES:

R
v
GOPURENKO, Stephen John
(applicant)

FILE NO/S:

CA No 123 of 2014
DC No 72 of 2014
DC No 129 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

10 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2014

JUDGES:

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

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant received a head sentence of six years imprisonment with parole eligibility after two years for two fraud offences, three armed robbery offences, and one common assault – where the applicant argues his sentence is manifestly excessive because of issues of totality arising out of his Victorian sentence – where the applicant was first sentenced in Victoria to five years and 11 months imprisonment with a non-parole period of four years – where he was sentenced in Queensland upon release on parole under the Victorian sentence – where the practical effect of the Queensland sentence was to extend the fulltime discharge date under the Victorian sentence to 10 years imprisonment and the minimum custodial period to six years – whether the sentence was manifestly excessive

R v Ankers[2003] QCA 211, distinguished
R v Brown[2003] QCA 372, considered
R v Edwards[2002] QCA 192, considered
R v Herbert[2014] QCA 83, considered
R v Kapitano[2002] QCA 496, distinguished
R v Law; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited
R v Senior[2002] QCA 104, considered

COUNSEL:

The applicant appeared on his own behalf
J A Wooldridge for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of Fraser JA and the order he proposes.

FRASER JA: On 29 April 2014 the applicant was sentenced to concurrent terms of imprisonment of two years for each of two fraud offences, six years imprisonment for each of three armed robbery offences, and six years imprisonment for a common assault committed in the course of the second armed robbery. Pre-sentence custody of 403 days between 21 March 2013 and 28 April 2014 was declared to be time served under the sentence. The sentencing judge fixed a parole eligibility date at 21 March 2015, when (taking into account the pre-sentence custody) the applicant will have served two years imprisonment under those sentences.

The applicant has applied for leave to appeal against sentence on the ground that it is manifestly excessive given issues of totality arising out of a Victorian sentence. The Victorian sentence was imposed on 23 October 2009. The applicant was then sentenced to a…

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 Gopurenko

Details

AGLC: R v Gopurenko [2014] QCA 255
Case: [2014] QCA 255
Decision Date: 10 October 2014

CaseChat Overview and Summary

The case before the court involved an appeal by the applicant, who sought to challenge the sentence imposed by the primary judge in the District Court of Queensland. The applicant, Gopurenko, was sentenced to six years imprisonment with parole eligibility after two years for his involvement in multiple criminal offences, including two counts of fraud, three counts of armed robbery, and one count of common assault. The applicant contended that his sentence was manifestly excessive, particularly in light of the cumulative effect of his prior Victorian sentence, which had been served in part, and his current Queensland sentence. The central legal issue before the court was whether the sentence imposed by the primary judge was manifestly excessive.

The court considered the principles governing appeals against sentence, particularly focusing on the concept of manifest excessiveness. The applicant argued that the totality of his sentences, when considered together, resulted in a punitive outcome that was disproportionate to the crimes committed. The court examined the applicant's prior Victorian sentence, which was five years and 11 months with a non-parole period of four years, and the subsequent Queensland sentence, which, when served consecutively, extended the overall custodial period to a total of 10 years. The court assessed whether the Queensland sentence, when viewed in conjunction with the Victorian sentence, was manifestly excessive. Ultimately, the court found that while the sentence was severe, it did not reach the threshold of being manifestly excessive. The court was satisfied that the sentence was proportionate to the nature and circumstances of the offences and the need to protect the community.

In reaching its decision, the court underscored the importance of proportionality in sentencing and the principle that the cumulative effect of sentences must be considered. However, the court held that the sentence was not so excessive as to warrant interference. The court noted that the applicant's criminal history and the seriousness of the offences justified a substantial custodial term. Consequently, the court dismissed the application for leave to appeal against the sentence, affirming the primary judge's determination. The court's decision was grounded in the need to balance the severity of the sentence with the need to uphold the principles of criminal justice.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Gopurenko [2014] QCA 255
PARTIES:	R v GOPURENKO, Stephen John (applicant)
FILE NO/S:	CA No 123 of 2014 DC No 72 of 2014 DC No 129 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	10 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2014
JUDGES:	Holmes, Fraser and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant received a head sentence of six years imprisonment with parole eligibility after two years for two fraud offences, three armed robbery offences, and one common assault – where the applicant argues his sentence is manifestly excessive because of issues of totality arising out of his Victorian sentence – where the applicant was first sentenced in Victoria to five years and 11 months imprisonment with a non-parole period of four years – where he was sentenced in Queensland upon release on parole under the Victorian sentence – where the practical effect of the Queensland sentence was to extend the fulltime discharge date under the Victorian sentence to 10 years imprisonment and the minimum custodial period to six years – whether the sentence was manifestly excessive R v Ankers[2003] QCA 211, distinguished R v Brown[2003] QCA 372, considered R v Edwards[2002] QCA 192, considered R v Herbert[2014] QCA 83, considered R v Kapitano[2002] QCA 496, distinguished R v Law; ex parte Attorney-General (Qld) [1996] 2 Qd R 63; [1995] QCA 444, cited R v Senior[2002] QCA 104, considered
COUNSEL:	The applicant appeared on his own behalf J A Wooldridge for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent