R v Hermansson; R v Ali

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Hermansson; R v Ali [2022] QCA 243

PARTIES:

In CA No 176 of 2021:

R
v
HERMANSSON, Kerstin Pleiades
(first applicant)

In CA No 179 of 2021:

R
v
ALI, Hegran
(second applicant)

FILE NO/S:

CA No 176 of 2021
CA No 179 of 2021
SC No 1978 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 25 June 2021 (Martin J)

DELIVERED ON:

2 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2022

JUDGES:

Bowskill CJ and Mullins JA and Boddice J

ORDERS:

In CA No 176 of 2021:

(a)   leave to appeal be granted;

(b)  the appeal against the base sentence of 10 years be allowed;

(c)   the base sentence be set aside;

(d)  the appellant be imprisoned for a period of nine and a half years for the base sentence;

(e) the mandatory sentence of a cumulative seven years’ imprisonment pursuant to s 161R of the Penalties and Sentences Act 1992 which must be served wholly in a Corrective Services facility be confirmed;

(f)    the appellant be eligible for parole at 26 May 2033;

(g)   it is declared that 555 days spent in pre-sentence custody between 26 May 2021 and 1 December 2022 is taken to be imprisonment already served under the sentence.

In CA No 179 of 2021:

(a)   leave to appeal be granted;

(b)  the appeal against the base sentence of eight years’ imprisonment be allowed;

(c)   the base sentence be set aside;

(d)  the appellant be imprisoned for a period of six years for the base sentence;

(e) the mandatory sentence of a cumulative seven years’ imprisonment pursuant to s 161R of the Penalties and Sentences Act1992 which must be served wholly in a Corrective Services facility be confirmed;

(f)    the appellant be eligible for parole at 26 November 2029;

(g)   it is declared that 555 days spent in pre-sentence custody between 26 May 2021 and 1 December 2022 is taken to be imprisonment already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the first applicant (“Hermansson”) pleaded guilty to trafficking in the dangerous drug methylamphetamine with a serious organised crime circumstance of aggravation – where Hermansson was sentenced to a period of ten years of imprisonment with a period of seven years being cumulatively imposed pursuant to s 161R of the Penalties and Sentences Act1992 – where Hermansson was a mature offender, having minor criminal history in Queensland and New Zealand – where Hermansson is a New Zealand citizen – where the trafficking business was sophisticated with members of the family having individual roles – where the trafficking business was substantial, sourcing and distributing at least 12 kilograms of methylamphetamine – where an issue at the contested sentencing hearing was the nature and circumstances of Hermansson’s involvement in the business – where Hermansson travelled to Sydney…

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Details
Case
[2022] QCA 243
Decision Date

CaseChat Overview and Summary

In the case of R v Hermansson and R v Ali, the applicants appealed against the sentences imposed on them by the Supreme Court of Queensland for their involvement in trafficking dangerous drugs. Hermansson was sentenced to ten years imprisonment for trafficking in methylamphetamine, with a seven-year cumulative sentence imposed under the Penalties and Sentences Act. Ali received an eight-year sentence for the same offence, also with a seven-year cumulative sentence. The primary legal issues before the court were whether the sentences were proportionate and whether the hardship of deportation for Hermansson should have been considered by the sentencing judge. The applicants argued that the sentences were manifestly excessive and that the sentencing judge failed to consider all relevant mitigating factors, including the potential hardship of deportation for Hermansson.

The court examined the nature of the trafficking business, which was sophisticated and substantial, involving multiple family members. Hermansson, a mature offender with minor criminal history, played a significant role in the business, influencing its direction and management. Ali, a young offender with minor criminal history, was involved due to cultural and financial pressures. The court found that while the sentences were severe, they were proportionate given the gravity of the offences and the applicants' roles within the trafficking organisation. The court did not consider the hardship of deportation as a relevant factor since no such submission was made at the sentencing hearing. The court concluded that the sentences were not manifestly excessive and dismissed the appeals.

In conclusion, leave to appeal was granted for both applicants. The court allowed the appeal against Hermansson's base sentence, reducing it to nine and a half years, and confirmed the cumulative seven-year sentence. For Ali, the court allowed the appeal against the base sentence, reducing it to six years, and also confirmed the cumulative seven-year sentence. The court declared that the time spent in pre-sentence custody would be counted towards the sentences served.

Orders

Orders of the court

In CA No 176 of 2021:

(a) leave to appeal be granted;

(b) the appeal against the base sentence of 10 years be allowed;

(c) the base sentence be set aside;

(d) the appellant be imprisoned for a period of nine and a half years for the base sentence;

(e) the mandatory sentence of a cumulative seven years’ imprisonment pursuant to s 161R of the Penalties and Sentences Act 1992 which must be served wholly in a Corrective Services facility be confirmed;

(f) the appellant be eligible for parole at 26 May 2033;

(g) it is declared that 555 days spent in pre-sentence custody between 26 May 2021 and 1 December 2022 is taken to be imprisonment already served under the sentence.

In CA No 179 of 2021:

(a) leave to appeal be granted;

(b) the appeal against the base sentence of eight years’ imprisonment be allowed;

(c) the base sentence be set aside;

(d) the appellant be imprisoned for a period of six years for the base sentence;

(e) the mandatory sentence of a cumulative seven years’ imprisonment pursuant to s 161R of the Penalties and Sentences Act 1992 which must be served wholly in a Corrective Services facility be confirmed;

(f) the appellant be eligible for parole at 26 November 2029;

(g) it is declared that 555 days spent in pre-sentence custody between 26 May 2021 and 1 December 2022 is taken to be imprisonment already served under the sentence.

Background

Background to the litigation

Should leave be granted, Ali relies on three grounds of appeal. First, that the learned sentencing judge failed to recognise the mitigating features in the sentence imposed (including her plea, cooperation, youth, lack of relevant criminal history and domestic violence history). Second, the sentencing judge acted on an incorrect factual basis in imposing the sentence, as a result of making findings adverse to the applicant with respect to the form of domestic violence she was subjected to. Third, the sentence was manifestly excessive.Background Hermansson was born in New Zealand in 1965. She was aged 51 to 52 years at the time of the offence and 55 years at sentence. She had a minor criminal history in Queensland and a minor irrelevant history in New Zealand. Hermansson was a New Zealand citizen, and therefore at risk of deportation. There was no submission below to the effect that deportation would amount to a hardship for Hermansson, however that submission is advanced on the application for leave to appeal. Ali was born in 1996, in Iraq. She was brought to Australia in 2006. She was aged 21 years at the time of the offence and 25 years at sentence. She had a minor criminal history in Queensland. She is an Australian citizen. Hermansson was married to a man called Sarhan. They had two children, aged nine and 10 years. Hermansson and Sarhan had married in accordance with Australian law in 2007. Sarhan had other “wives” under Muslim law. One of the more recent wives was AB. Ali is the daughter of Sarhan. Her mother had married Sarhan in Iraq. Shortly after her birth, Sarhan left the country leaving Ali, her mother and other siblings in Iraq. Sarhan returned to Iraq in 2006 and then brought Ali, who was then 11 years old, back to Australia with him. Ali had not seen her biological mother since leaving Iraq.Procedural history On 21 December 2018, an indictment was presented in the Supreme Court of Queensland charging each applicant with the offence to which they pleaded guilty and a further offence, that they had unlawful possession of the dangerous drug methylamphetamine in excess of 200 grams. Subsequent to the presentation of the indictment, there were applications heard and determined pursuant to s 590AA of the Criminal Code. There was also an application for a judge alone trial. On 10 May 2021, both applicants entered pleas of guilty to trafficking in a dangerous drug but not guilty to the circumstance of aggravation. Those pleas were not accepted by the Crown. A nolle prosequi was entered in respect of the other count on the indictment. On the same date, the applicants’ applications for a no jury order were dismissed. On 11 May 2021, each applicant was again arraigned in respect of the count of trafficking in a dangerous drug with the circumstance of aggravation. Each applicant entered a plea of guilty to that count.Sentence hearing The sentence hearing was conducted on the basis of a statement of facts. Much of that statement was not in contest. What was in contest was the nature and circumstances of each applicant’s involvement in the trafficking business.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BOWSKILL CJ

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Ratio Decidendi

Legal Principle Established

Established by: BOWSKILL CJ

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