R v Hunt - [2016] QCA 297

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hunt [2016] QCA 297

PARTIES:

R
v
HUNT, Malcolm Lloyd
(applicant)

FILE NO/S:

CA No 194 of 2016
SC No 258 of 2015
SC No 260 of 2015
SC No 671 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 23 June 2016

DELIVERED ON:

16 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2016

JUDGES:

Margaret McMurdo P and 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 appeal against sentence granted.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant was sentenced to seven years imprisonment for trafficking methylamphetamine, lesser concurrent terms of imprisonment for indictable drug offences and an accessory after the fact offence, and 12 months cumulative imprisonment for four counts of unlawful possessing of a motor vehicle – where parole eligibility was fixed at one third of the eight year sentence – where the applicant contends he has a justifiable sense of grievance when comparing his sentence to his co-offenders, Michael Baradel and Stephen Rae – where Baradel did not have a relevant criminal history, was younger than the applicant, trafficked for a shorter period than the applicant and was only sentenced on drug offences – where Rae was sentenced for the additional offence of extortion but provided significant co-operation to police, trafficked at a lower level than the applicant and did not produce methylamphetamine – whether the applicant had a justifiable sense of grievance when comparing his sentence to Baradel and Rae

R v Baradel[2016] QCA 114, related
R v Barton[2006] QCA 367, cited
R v Hennig[2010] QCA 244, cited
R v Rae[2016] QCA 228, related
R v Taylor[2006] QCA 459, cited
R v Tout[2012] QCA 296, cited
R v Ungvari[2010] QCA 134, cited

COUNSEL:

S M Ryan QC for the applicant
D R Kinsella for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The applicant, Malcolm Hunt, pleaded guilty on 23 June 2016 to accessory after the fact to dangerous conduct with a weapon in May 2013; four counts of unlawful possessing of a motor vehicle between May and July 2013; trafficking in methylamphetamine between 5 May and 24 October 2013; producing methylamphetamine between 9 and 13 May 2013; permitting use of a place for producing methylamphetamine on 8 September 2013; possessing methylamphetamine on 23 October 2013; possessing things used in connection with supplying a dangerous drug on 23 October 2013; and summary offences of disqualified driving, possessing utensils and pipes; possessing a restricted drug and possessing explosives without authority, all on 23 October 2013.
He was sentenced…

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 Hunt

Details

AGLC: R v Hunt [2016] QCA 297
Case: [2016] QCA 297
Decision Date: 16 November 2016

CaseChat Overview and Summary

In the matter of R v Hunt, the applicant appealed against his sentence for trafficking methylamphetamine, indictable drug offences, and an accessory after the fact offence, as well as unlawful possession of a motor vehicle. The Court of Appeal was tasked with determining whether the applicant's sentence was disproportionate compared to his co-offenders, Baradel and Rae, and whether the sentence warranted interference.

The court first considered whether the applicant had a justifiable sense of grievance in relation to his sentence. It examined the relevant criminal history, age, duration of trafficking, and specific offences of each offender. The court found that while the applicant and Baradel trafficked at a similar level, the applicant was older, trafficked for a longer period, and had a more extensive criminal history. Additionally, the applicant was sentenced on multiple offences, including motor vehicle offences and being an accessory after the fact, whereas Baradel was sentenced only on drug offences. Regarding Rae, the court found that his significant co-operation with police and rehabilitation warranted a lesser sentence. The court concluded that, considering all the circumstances, the applicant's sentence did not give rise to a justifiable sense of grievance.

The Court of Appeal dismissed the applicant's appeal against his sentence. The court found that the sentence was appropriate given the applicant's criminal history, the nature of his offences, and the comparison to his co-offenders. The court granted leave to appeal but dismissed the appeal, affirming the original sentence.

ORDERS:
1. Application for leave to appeal against sentence granted.
2. Appeal dismissed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This Court determined that, although Rae had pleaded guilty to grossly anti-social conduct warranting a firm deterrent penalty and was a mature man with previous convictions, there were mitigating features. He had not previously been sentenced to a term of imprisonment. He offended whilst in dire financial trouble which had contributed to his downward spiral into drug addiction. He had rehabilitated with clear drug tests and excellent character references and had a stable marriage and two dependent children. Provided he abstained from illicit drug use he was at a low risk of re-offending. His significant co-operation on the extortion offence had to be reflected in mitigation of the sentence on all counts. His case was distinguishable from that of Baradel and Hunt.[18] He was trading at a lower level than Baradel and should have received a slightly lesser penalty. A head sentence of five years imprisonment was appropriate for the drug offending. Rae’s sentence for extortion should reflect parity with Ryan’s sentence; a sentence of two years imprisonment, fully suspended, with an operational period of three years was appropriate. In light of his special co-operation and his rehabilitation, the 12 month, previously fully suspended, term of imprisonment for sexual assault should be served concurrently.[19] The global sentence of six years imprisonment imposed at first instance was therefore manifestly excessive.[20] The mitigating features warranted a global head sentence of five years imprisonment.[21] To assist his rehabilitation, on one count of supplying dangerous drugs he was placed on probation with special conditions relating to substance abuse.[22][18]Rae [2016] QCA 228, [40].[19]Above, [43].[20]Above, [41].[21]Above, [42].[22]Above, [44].Conclusion The applicant was a mature man with a concerning criminal history for like offending. He had been sentenced to significant past terms of imprisonment and had breached a suspended sentence. Most recently, he pleaded guilty not only to trafficking in and producing methylamphetamine, but also to offences of dishonesty involving motor vehicles. Additionally, his assistance to Graham as an accessory after the fact, placed his drug trafficking in a sinister context and highlighted its gravely anti-social and dangerous nature. Whilst he and Baradel trafficked at a similar level, the applicant was much older, continued to traffic over a further six week period, and had an extensive relevant criminal history. Baradel was sentenced only on drug offences, whereas the applicant was also sentenced on the motor vehicle offences and the accessory after the fact offence. Baradel’s sentence was effectively one of six years with parole eligibility after one third whereas the applicant’s sentence was effectively eight years imprisonment with parole eligibility after one third. An additional sentence of two years imprisonment in the applicant’s case, once all relevant circumstances are considered, does not give rise to a justifiable sense of grievance.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hunt [2016] QCA 297
PARTIES:	R v HUNT, Malcolm Lloyd (applicant)
FILE NO/S:	CA No 194 of 2016 SC No 258 of 2015 SC No 260 of 2015 SC No 671 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 23 June 2016
DELIVERED ON:	16 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2016
JUDGES:	Margaret McMurdo P and 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 appeal against sentence granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant was sentenced to seven years imprisonment for trafficking methylamphetamine, lesser concurrent terms of imprisonment for indictable drug offences and an accessory after the fact offence, and 12 months cumulative imprisonment for four counts of unlawful possessing of a motor vehicle – where parole eligibility was fixed at one third of the eight year sentence – where the applicant contends he has a justifiable sense of grievance when comparing his sentence to his co-offenders, Michael Baradel and Stephen Rae – where Baradel did not have a relevant criminal history, was younger than the applicant, trafficked for a shorter period than the applicant and was only sentenced on drug offences – where Rae was sentenced for the additional offence of extortion but provided significant co-operation to police, trafficked at a lower level than the applicant and did not produce methylamphetamine – whether the applicant had a justifiable sense of grievance when comparing his sentence to Baradel and Rae R v Baradel[2016] QCA 114, related R v Barton[2006] QCA 367, cited R v Hennig[2010] QCA 244, cited R v Rae[2016] QCA 228, related R v Taylor[2006] QCA 459, cited R v Tout[2012] QCA 296, cited R v Ungvari[2010] QCA 134, cited
COUNSEL:	S M Ryan QC for the applicant D R Kinsella for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent