R v Harbas - [2013] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harbas [2013] QCA 159

PARTIES:

R
v
HARBAS, Saffet John
(applicant)

FILE NO/S:

CA No 289 of 2012
SC No 536 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2013

JUDGES:

Holmes and Fraser JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Vary the orders made in the Trial Division by:

a.   On count 1 of the indictment, substituting for the sentence and order made in the Trial Division:

  i.   a sentence of imprisonment for five years; and

  ii.   an order that after the applicant has served twelve months imprisonment the term of imprisonment be suspended for an operational period of five years during which the applicant must not commit another offence punishable by imprisonment if the applicant is to avoid being dealt with under s 147 of the Penalties and Sentences Act 1992 for the suspended sentence.

b.   On counts 2-5, substituting for the sentence imposed in the Trial Division a sentence of imprisonment for a period of 12 months.

4.   Otherwise confirm the orders made in the Trial Division.

5.   The confidential reasons for judgment of Fraser JA handed down to the parties today and marked “A” be not further published, a copy thereof be placed in a sealed envelope together with the transcript of that part of the proceedings which was not conducted in open court, and that envelope be opened only by order of the Court or upon an application under s 188(2) of the Penalties and Sentences Act 1992 (Qld).

6.   Grant the applications filed on 10 April 2013 and 11 April 2013 to adduce evidence to the extent identified in those confidential reasons.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to nine counts in an ex-officio indictment – where the applicant was sentenced to six years imprisonment for trafficking in dangerous drugs and two years imprisonment for one count of unlawful production of a dangerous drug and three counts of unlawful possession of a dangerous drug – where the applicant made an undertaking to co-operate with law enforcement agencies pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the sentence was manifestly excessive – whether the sentence proceeding miscarried

Penalties and Sentences Act 1992 (Qld), s 9, s 13A

R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited
R v M [2002] 1 Qd R 520; [2001] QCA 131, cited

COUNSEL:

A S McDougall for the applicant
D L Meredith for the respondent

SOLICITORS:

Bosscher Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: I agree with 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 Harbas

Details

AGLC: R v Harbas [2013] QCA 159
Case: [2013] QCA 159
Decision Date: 21 June 2013

CaseChat Overview and Summary

The appellant in this case pleaded guilty to multiple drug-related offences and was sentenced in the Trial Division. The appellant sought leave to appeal against the sentence, arguing it was manifestly excessive or inadequate. The court was tasked with determining whether the sentence was indeed excessive, and if there were any procedural errors that led to a miscarriage of justice.

The primary legal issue was whether the sentence imposed was manifestly excessive or inadequate, taking into account the appellant's undertaking to cooperate with law enforcement. The court also had to consider whether the trial had proceeded in a manner that could be considered a miscarriage of justice. The appellant's cooperation and the nature of the crimes were significant factors in the court's analysis.

The Court found that the sentence was manifestly excessive in relation to the first count and inadequate in relation to the subsequent counts. The appellant's cooperation and the potential deterrent effect of the sentence were balanced against the need for appropriate punishment. The Court also found that the trial had not miscarried. Accordingly, the Court allowed the appeal and varied the sentence, substituting a five-year sentence for the first count and a twelve-month sentence for the remaining counts.

The final orders of the Court were to grant leave to appeal, allow the appeal, and vary the sentences as specified. The reasons for judgment were deemed confidential and not to be further published. Evidence adduced during the appeal was also permitted under certain conditions.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Vary the orders made in the Trial Division by:

a. On count 1 of the indictment, substituting for the sentence and order made in the Trial Division:

i. a sentence of imprisonment for five years; and

ii. an order that after the applicant has served twelve months imprisonment the term of imprisonment be suspended for an operational period of five years during which the applicant must not commit another offence punishable by imprisonment if the applicant is to avoid being dealt with under s 147 of the Penalties and Sentences Act 1992 for the suspended sentence.

b. On counts 2-5, substituting for the sentence imposed in the Trial Division a sentence of imprisonment for a period of 12 months.

4. Otherwise confirm the orders made in the Trial Division.

5. The confidential reasons for judgment of Fraser JA handed down to the parties today and marked “A” be not further published, a copy thereof be placed in a sealed envelope together with the transcript of that part of the proceedings which was not conducted in open court, and that envelope be opened only by order of the Court or upon an application under s 188(2) of the Penalties and Sentences Act 1992 (Qld).

6. Grant the applications filed on 10 April 2013 and 11 April 2013 to adduce evidence to the extent identified in those confidential reasons.

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 Harbas [2013] QCA 159
PARTIES:	R v HARBAS, Saffet John (applicant)
FILE NO/S:	CA No 289 of 2012 SC No 536 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 June 2013
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2013
JUDGES:	Holmes and Fraser JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Vary the orders made in the Trial Division by: a. On count 1 of the indictment, substituting for the sentence and order made in the Trial Division: i. a sentence of imprisonment for five years; and ii. an order that after the applicant has served twelve months imprisonment the term of imprisonment be suspended for an operational period of five years during which the applicant must not commit another offence punishable by imprisonment if the applicant is to avoid being dealt with under s 147 of the Penalties and Sentences Act 1992 for the suspended sentence. b. On counts 2-5, substituting for the sentence imposed in the Trial Division a sentence of imprisonment for a period of 12 months. 4. Otherwise confirm the orders made in the Trial Division. 5. The confidential reasons for judgment of Fraser JA handed down to the parties today and marked “A” be not further published, a copy thereof be placed in a sealed envelope together with the transcript of that part of the proceedings which was not conducted in open court, and that envelope be opened only by order of the Court or upon an application under s 188(2) of the Penalties and Sentences Act 1992 (Qld). 6. Grant the applications filed on 10 April 2013 and 11 April 2013 to adduce evidence to the extent identified in those confidential reasons.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to nine counts in an ex-officio indictment – where the applicant was sentenced to six years imprisonment for trafficking in dangerous drugs and two years imprisonment for one count of unlawful production of a dangerous drug and three counts of unlawful possession of a dangerous drug – where the applicant made an undertaking to co-operate with law enforcement agencies pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the sentence was manifestly excessive – whether the sentence proceeding miscarried Penalties and Sentences Act 1992 (Qld), s 9, s 13A R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v M [2002] 1 Qd R 520; [2001] QCA 131, cited
COUNSEL:	A S McDougall for the applicant D L Meredith for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent