R v Grey - [2020] QCA 77

SUPREME COURT OF QUEENSLAND

CITATION:

R v Grey [2020] QCA 77

PARTIES:

R
v
GREY, Jonathon
(applicant)

FILE NOS:

CA No 269 of 2019
SC No 1460 of 2019
SC No 1482 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 27 September 2019 (Douglas J)

DELIVERED ON:

21 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2020

JUDGES:

Morrison JA and Boddice and Williams JJ

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.    Set aside the pre-sentence custody declaration made on 27 September 2019 and in lieu thereof declare that 446 days spent in pre-sentence custody between 6 September 2016 and 21 September 2016, and between 24 July 2018 and 26 September 2019, be deemed time already served under the sentence.

4.   Otherwise affirm the sentences imposed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where over a period of just more than one year the applicant and his wife operated a sophisticated, commercially driven, drug trafficking enterprise involving both cannabis and MDMA – where the applicant pleaded guilty to eight charges – where the eight counts and sentences imposed were as follows: count 1, supplying a dangerous drug, 12 months’ imprisonment; count 2, forgery, six months’ imprisonment; count 3, uttering, six months’ imprisonment; count 4, trafficking in dangerous drugs between 25 August 2015 and 4 September 2016, nine years’ imprisonment; count 5, producing a dangerous drug in excess of 500 grams, convicted and not further punished; count 6, possessing a dangerous drug, 18 months’ imprisonment; count 7, possessing a dangerous drug in excess of 2 grams, 18 months’ imprisonment; and count 8, possessing things for use in connection with producing a dangerous drug, convicted and not further punished – where all sentences were made concurrent, and the applicant’s parole eligibility date was set at 21 August 2021 – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where soon after the applicant and his wife were charged, they fled to South Australia and were not located until 2017 – where while in South Australia the applicant pleaded guilty to possession of a controlled drug for sale and was sentenced to imprisonment for one year and nine months – where eventually the applicant was extradited to Queensland and remanded in custody – whether there was a misapplication of the principle of totality – whether an amount of 16 days of pre-sentence custody was declared

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied
R v Eaton[2019] QCA 147, cited
R v Feakes[2009] QCA 376, cited
R v Todd [1982] 2 NSWLR 517, cited

COUNSEL:

The applicant appeared on his own behalf
D Kovac for the respondent

SOLICITORS:

The…

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 Grey

Details

AGLC: R v Grey [2020] QCA 77
Case: [2020] QCA 77
Decision Date: 21 April 2020

CaseChat Overview and Summary

In the case of R v Grey, the applicant appealed against the sentence imposed by the trial judge. The applicant had pleaded guilty to multiple drug-related offences and was sentenced to various terms of imprisonment. The central issue before the court was whether the sentence was manifestly excessive and whether the trial judge misapplied the principle of totality in setting the parole eligibility date. The applicant argued that the sentence should have been moderated by the time already served in South Australia prior to his extradition to Queensland.

The court found that the trial judge misapplied the principle of totality as established in Mill v The Queen. The principle requires that the total sentence be just and appropriate for the total criminality, taking into account the time already served. The court noted that the applicant had already served a substantial period in South Australia for related offences and that fairness to the prisoner required consideration of his progress in rehabilitation during that time. The court also considered that the sentencing for stale crimes, long after the offences were committed, often calls for a flexible approach that takes into account the passage of time.

The court granted the application for leave to appeal and allowed the appeal. It set aside the pre-sentence custody declaration and declared that the 446 days spent in pre-sentence custody be deemed time already served under the sentence. The court otherwise affirmed the sentences imposed by the trial judge. The final orders included granting leave to appeal, allowing the appeal, setting aside the pre-sentence custody declaration, and affirming the sentences imposed.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Set aside the pre-sentence custody declaration made on 27 September 2019 and in lieu thereof declare that 446 days spent in pre-sentence custody between 6 September 2016 and 21 September 2016, and between 24 July 2018 and 26 September 2019, be deemed time already served under the sentence.

4. Otherwise affirm the sentences imposed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances, the applicant is entitled to have the extra 16 days taken into account as time already served under the sentence imposed. That can be done by varying the pre-sentence custody declaration.Conclusion and orders For the reasons expressed above I would make the following orders:1. Grant the application for leave to appeal.2. Allow the appeal.3. Set aside the pre-sentence custody declaration made on 27 September 2019 and in lieu thereof declare that 446 days spent in pre-sentence custody between 6 September 2016 and 21 September 2016, and between 24 July 2018 and 26 September 2019, be deemed time already served under the sentence.4. Otherwise affirm the sentences imposed. BODDICE J: I agree with Morrison JA. WILLIAMS J: I have read the reasons of Morrison JA and agree with those reasons and the orders his Honour proposes.

Ratio Decidendi

Legal Principle Established

The learned sentencing judge then turned to the question of fixing the parole eligibility date. His Honour noted that the four year period in Eaton was appropriate as a starting point. The learned sentencing judge then referred to the submission made by counsel for the applicant, namely that the parole eligibility date should be set four years from the time when the applicant first went into custody in South Australia, namely 21 August 2017. His Honour then referred to the High Court decision in Mill v The Queen[16] setting out the totality principle and its applicability to interstate offending. His Honour then said:[17]“It does seem to me, however, bearing that principle in mind, that there is some logic to attaching a parole eligibility date to your first entry into custody in South Australia. It also has to be borne in mind that you fled this jurisdiction to avoid this hearing and that is something I bear in mind also but, overall, it seems to me that it is appropriate to fix a parole eligibility date, having regard to the head sentence I have imposed, four years from when you first went into custody, which will be the 21st of August 2021, slightly less than two years from now.”[16](1988) 166 CLR 59 at 63.[17]AB 63 lines 25-31.Consideration The applicant’s central contention was that there was an error in the application of the totality principle as set out in Mill v The Queen.[18] In essence, the applicant contends that the head sentence here should have been moderated by the length of time served in South Australia, so that the head sentence here dated from the commencement of the imprisonment in South Australia, 21 August 2017.[18](1988) 166 CLR 59. The totality principle referred to in Mill v The Queen operates to require a sentencing court, when a number of offences are being dealt with and specific punishments are being totalled up, to review the total effect to ensure that the aggregate is just and appropriate for the total criminality. Mill v The Queen endorsed the reasoning in R v Todd[19] and in particular a passage from the reasons of Street CJ:[20]“it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. …… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be quite an undue degree of leniency being extended to the prisoner.”[19][1982] 2 NSWLR 517.[20]Mill v The Queen at 64; Todd at 519-520.

CITATION:	R v Grey [2020] QCA 77
PARTIES:	R v GREY, Jonathon (applicant)
FILE NOS:	CA No 269 of 2019 SC No 1460 of 2019 SC No 1482 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 27 September 2019 (Douglas J)
DELIVERED ON:	21 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	8 April 2020
JUDGES:	Morrison JA and Boddice and Williams JJ
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Set aside the pre-sentence custody declaration made on 27 September 2019 and in lieu thereof declare that 446 days spent in pre-sentence custody between 6 September 2016 and 21 September 2016, and between 24 July 2018 and 26 September 2019, be deemed time already served under the sentence. 4. Otherwise affirm the sentences imposed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where over a period of just more than one year the applicant and his wife operated a sophisticated, commercially driven, drug trafficking enterprise involving both cannabis and MDMA – where the applicant pleaded guilty to eight charges – where the eight counts and sentences imposed were as follows: count 1, supplying a dangerous drug, 12 months’ imprisonment; count 2, forgery, six months’ imprisonment; count 3, uttering, six months’ imprisonment; count 4, trafficking in dangerous drugs between 25 August 2015 and 4 September 2016, nine years’ imprisonment; count 5, producing a dangerous drug in excess of 500 grams, convicted and not further punished; count 6, possessing a dangerous drug, 18 months’ imprisonment; count 7, possessing a dangerous drug in excess of 2 grams, 18 months’ imprisonment; and count 8, possessing things for use in connection with producing a dangerous drug, convicted and not further punished – where all sentences were made concurrent, and the applicant’s parole eligibility date was set at 21 August 2021 – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where soon after the applicant and his wife were charged, they fled to South Australia and were not located until 2017 – where while in South Australia the applicant pleaded guilty to possession of a controlled drug for sale and was sentenced to imprisonment for one year and nine months – where eventually the applicant was extradited to Queensland and remanded in custody – whether there was a misapplication of the principle of totality – whether an amount of 16 days of pre-sentence custody was declared Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied R v Eaton[2019] QCA 147, cited R v Feakes[2009] QCA 376, cited R v Todd [1982] 2 NSWLR 517, cited
COUNSEL:	The applicant appeared on his own behalf D Kovac for the respondent
SOLICITORS:	The…