R v HBK - [2014] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBK [2014] QCA 100

PARTIES:

R
v
HBK
(applicant)

FILE NO/S:

CA No 198 of 2013
SC No 988 of 2011
SC No 989 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2014

JUDGES:

Margaret McMurdo P, Morrison JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.       Application for leave to adduce further evidence refused.

2.       Application for leave to appeal against sentence granted.

3.       Appeal allowed.

4.       Sentence imposed on count 1 on indictment 988 of 2011 is varied only to the extent of ordering that the term of imprisonment be suspended after 15 months and six days.

5.       Each of the sentences imposed on counts 1 and 3 on indictment 989 of 2011 is varied only to the extent of ordering that each term of imprisonment be suspended after 16 months.

6.       The sentences imposed at first instance are otherwise confirmed.

7.       The Appeal Record Books, written submissions and the material in the application to adduce further evidence are to be placed in sealed envelopes which are not to be opened without an order of a Supreme Court Judge.

8.       The transcript of the appeal hearing is not to be provided to anyone without an order of a Supreme Court Judge.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of trafficking in a dangerous drug and one count of possession of dangerous drug – where the applicant sentenced for each trafficking offence to five years imprisonment suspended after 22 months – where the applicant provided information to the police about the criminal activities of others – where the applicant and the applicant’s family were placed in the witness protection program – where imprisonment for the applicant would be more onerous as a result of the assistance given to the police – where the sentencing judge concluded a substantial moderation of the sentences was required to reflect the applicant’s assistance to the police – whether sentences were manifestly excessive

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered
R v Briggs[2012] QCA 291, considered
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, considered
R v Ungvari[2010] QCA 134, considered

COUNSEL:

A Boe with P Morreau for the applicant
G J Cummings for the respondent

SOLICITORS:

Boe Williams Anderson for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with the reasons and orders proposed by Mullins J.

MORRISON JA: I have read the reasons of Mullins J and agree with those reasons and the orders her Honour proposes.

MULLINS J: In July 2013 the applicant pleaded…

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 HBK

Details

AGLC: R v HBK [2014] QCA 100
Case: [2014] QCA 100
Decision Date: 6 May 2014

CaseChat Overview and Summary

The appeal before the court was from HBK, who had pleaded guilty to trafficking in a dangerous drug on two occasions and to possession of a dangerous drug. The sentencing judge had imposed a sentence of five years imprisonment for each trafficking offence, suspended after 22 months, and a sentence for the possession charge. HBK appealed against the sentences, arguing that they were manifestly excessive. HBK had provided information to the police about the criminal activities of others and had been placed in the witness protection program along with his family. The appeal raised questions about the appropriate weight to be given to HBK's assistance to the police in determining the sentence.

The court considered whether the sentences imposed were manifestly excessive or inadequate. The sentencing judge had concluded that a substantial moderation of the sentences was required to reflect HBK's assistance to the police. The court noted that HBK had pleaded guilty and had provided significant assistance to the police, which was relevant to the sentencing process. The court considered that the sentences imposed were manifestly excessive, given the assistance provided by HBK and the other relevant factors. The court also considered the need to protect HBK and his family, who were in the witness protection program.

The appeal was allowed, and the sentences were varied to reflect the appropriate weight given to HBK's assistance to the police. The sentences imposed on count 1 on indictment 988 of 2011 and on counts 1 and 3 on indictment 989 of 2011 were varied to order that the terms of imprisonment be suspended after a shorter period. The sentences imposed at first instance were otherwise confirmed. The appeal record books, written submissions, and material in the application to adduce further evidence were to be placed in sealed envelopes, and the transcript of the appeal hearing was not to be provided to anyone without an order of a Supreme Court Judge.

Orders

Orders of the court

1. Application for leave to adduce further evidence refused.

2. Application for leave to appeal against sentence granted.

3. Appeal allowed.

4. Sentence imposed on count 1 on indictment 988 of 2011 is varied only to the extent of ordering that the term of imprisonment be suspended after 15 months and six days.

5. Each of the sentences imposed on counts 1 and 3 on indictment 989 of 2011 is varied only to the extent of ordering that each term of imprisonment be suspended after 16 months.

6. The sentences imposed at first instance are otherwise confirmed.

7. The Appeal Record Books, written submissions and the material in the application to adduce further evidence are to be placed in sealed envelopes which are not to be opened without an order of a Supreme Court Judge.

8. The transcript of the appeal hearing is not to be provided to anyone without an order of a Supreme Court Judge.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v HBK [2014] QCA 100
PARTIES:	R v HBK (applicant)
FILE NO/S:	CA No 198 of 2013 SC No 988 of 2011 SC No 989 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2014
JUDGES:	Margaret McMurdo P, Morrison JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to adduce further evidence refused. 2. Application for leave to appeal against sentence granted. 3. Appeal allowed. 4. Sentence imposed on count 1 on indictment 988 of 2011 is varied only to the extent of ordering that the term of imprisonment be suspended after 15 months and six days. 5. Each of the sentences imposed on counts 1 and 3 on indictment 989 of 2011 is varied only to the extent of ordering that each term of imprisonment be suspended after 16 months. 6. The sentences imposed at first instance are otherwise confirmed. 7. The Appeal Record Books, written submissions and the material in the application to adduce further evidence are to be placed in sealed envelopes which are not to be opened without an order of a Supreme Court Judge. 8. The transcript of the appeal hearing is not to be provided to anyone without an order of a Supreme Court Judge.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of trafficking in a dangerous drug and one count of possession of dangerous drug – where the applicant sentenced for each trafficking offence to five years imprisonment suspended after 22 months – where the applicant provided information to the police about the criminal activities of others – where the applicant and the applicant’s family were placed in the witness protection program – where imprisonment for the applicant would be more onerous as a result of the assistance given to the police – where the sentencing judge concluded a substantial moderation of the sentences was required to reflect the applicant’s assistance to the police – whether sentences were manifestly excessive Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, considered R v Briggs[2012] QCA 291, considered R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, considered R v Ungvari[2010] QCA 134, considered
COUNSEL:	A Boe with P Morreau for the applicant G J Cummings for the respondent
SOLICITORS:	Boe Williams Anderson for the applicant Director of Public Prosecutions (Queensland) for the respondent