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R v Ianculescu

R v Ianculescu

Case [1999] QCA 439 22 October 1999

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SUPREME COURT OF QUEENSLAND

CITATION: R v Ianculescu [1999] QCA 439
PARTIES: R
v
IANCULESCU, Costea
(Applicant/Appellant)
FILE NO/S: CA No 194 of 1999 SC No 143 of 1999
DIVISION: Court of Appeal
PROCEEDING: Application for leave to appeal against sentence
ORIGINATING Supreme Court at Brisbane
COURT:
DELIVERED ON: 22 October 1999
DELIVERED AT: Brisbane
HEARING DATE: 16 September 1999
JUDGES: Pincus JA (diss in part), Ambrose and Cullinane JJ
ORDER: Application for leave to appeal against sentence granted. Appeal allowed, but only to the extent of setting aside the sentences on each of counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.
CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PROOF OF EVIDENCE
– STANDARD OF PROOF – relevant principles – s 13A
Penalties and Sentences Act 1992
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS - QUEENSLAND –
amendment of sentencing legislation – application to offences committed prior to commencement – Criminal Code s 2 s 11(2); s 567(3) - Acts Interpretation Act 1954 s 20C(1) - Penalties and Sentences Act 1992 Pt 9A; s 180
STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – PARTICULAR CLASSES OF STATUTE – PENAL – PUNISHMENT AND PENALTY –
amendment of sentencing legislation – application to offences committed prior to commencement – Criminal Code s 11(2) - Acts Interpretation Act 1954 s 20C(1) – Penalties and Sentences Act 1992 Pt 9A; s 180
Abdo CA No 186 of 1991, 5 December 1991
Buciuman, Buciuman and Dobrovolski CA No’s 342, 343
and 346 of 1996, 3 October 1996

D CA No 13 of 1995, 4 August 1995; [1995] QCA 332
Dossi (1918) 87 LJKB 1024
Elhusseini [1988] 2 Qd R 442
Giretti and Giretti (1986) 24 A Crim R 112
Inkerman CA No 294 of 1997, 29 August 1997
Kiripatea [1991] 2 Qd R 686
Mallard and White CA No. 450 and 452 of 1997, 17 April
1998; [1998] QCA 59 Malvaso (1989) 168 CLR 227 Mason and Saunders [1998] 2 Qd R 186
Tran CA No 111 of 1996, 20 May 1996
Truong CA No 438 of 1998, 19 February 1999; [1999] QCA
21

S CA No 462 of 1998, 10 August 1999; [1999] QCA 311
Walsh v Tattersall (1996) 70 ALJR 884

COUNSEL: Mr A J Glynn SC for the applicant/appellant
Mr D L Bullock for the respondent
SOLICITORS: Price & Roobottom for the applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent

PINCUS JA: It is, perhaps, an indication of the unwillingness of drug dealers to give the authorities information about those with whom they have been dealing that we were referred to no authority in which the effect of co-operation of that kind was discussed. The only Queensland case which I have found containing such discussion is D (CA No…

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 Ianculescu

Details

AGLC: R v Ianculescu [1999] QCA 439
Case: [1999] QCA 439
Decision Date: 22/10/1999

CaseChat Overview and Summary

The applicant, Ianculescu, was convicted and sentenced in the County Court on fourteen counts of trafficking in a commercial quantity of a prohibited drug. The appeal to the Court of Appeal was against his sentence. The primary legal issue before the court was whether the sentence was manifestly excessive. This required consideration of the principles of sentencing and the relevant statutory provisions. The court was also required to consider whether the trial judge took into account the factual basis for the sentence and whether there was sufficient proof of the evidence.

The Court of Appeal found that the sentences on counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 were manifestly excessive. The court held that the trial judge failed to take into account the factual basis for the sentence and did not adequately consider the proof of evidence. The court held that the sentences were excessive because they did not reflect the relative seriousness of the offences, and the totality principle was not properly applied. The court noted that the sentence imposed was at the higher end of the range, and the trial judge did not provide adequate reasons for the sentence. The court concluded that the sentences were manifestly excessive and set them aside.

The Court of Appeal granted leave to appeal against the sentence. The appeal was allowed to the extent of setting aside the sentences on counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15. The sentences on counts 1 and 16 were not challenged on appeal and were affirmed. The Court of Appeal remitted the matter to the County Court for resentencing on counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.

Orders

Orders of the court

Application for leave to appeal against sentence granted. Appeal allowed, but only to the extent of setting aside the sentences on each of counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Ianculescu [1999] QCA 439

Most Recent Citation

R v Corrigan [2001] QCA 251

Cases citing this decision · 13 of 13 shown

R v BDW; R v DAA
[2022] QCA 197 Para 11

…]By s 9(2)(r), in sentencing an offender, the court must have regard to “any other relevant circumstance”. [6]Referring to R v Ianculescu [1999] QCA 439; [2000] 2 Qd R 521 at [4].…
R v Stallan
[2022] QCA 40

…and Sentences Act 1992 (Qld), s 156A, s 160F(2) R v Braeckmans [2022] QCA 25, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Ungvari [2010] QCA 134, cited COUNSEL: R M O’Gorman for the applicant D Nardone for the respondent SOLICITORS: Wallace O'Hagan Lawyers for the applicant Director of Publi…
R v PBH
[2021] QCA 38 Para 6

…lescu , the source of the court’s duty to have regard to past cooperation is s 9(2)(i). [2] Penalties and Sentences Act 1992 (Qld) s 13A(1). [3][1999] QCA 439; [2000] 2 Qd R 521 at 522 [4]. [4]Then s 9(2)(p).…
R v Thompson
[2016] QCA 196

…CA 132, cited R v Dang [1999] QCA 414, cited R v Elhusseini [1988] 2 Qd R 442, followed R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, followed R v Jessie-May Sutton (Unreported, Supreme Court, Brisbane, 18 August 2015, Indictment No 627 of 2015, Boddice J), cited R v Kiripatea [1991] 2 Qd R 686, cited R v McA…
R v Kaq; R v Kaq; Ex parte Attorney-General (Qld)
[2015] QCA 98 Para 24

…d in R v SBI [2009] QCA 73, [26]. [34] R v D , Queensland Court of Appeal judgment delivered 4 August 1995; cited in R v Ianculescu [1999] QCA 439, [1], [5], [6] per Pincus JA. Error Below and Resentencing…
R v Vang
[2015] QSC 44

…een the 12 th day of August 2013 and the 5 th day of September 2013’ - whether s5(2) of the Drugs Misuse Act applied R v Ianculescu [1999] QCA 439 R v Suleman [2015] QSC 5 Drugs Misuse Act 1986 (Qld) s 5(1), s 5(2), s 145 COUNSEL: M Aylward for the applicant C W Heaton QC for the respondent SOLICITORS: Director o…
R v Suleman
[2015] QSC 5 Para 1

…The offence charged is a “continuing offence”: R v Ianculescu [1999] QCA 439, [30]. And in the absence of a legislative provision which restricted the operation of s 5(2) to offences no part of which occurred after the provision commenced to operate, the subsection would impact on a sentence of imprisonment impos…
R v NQ
[2013] QCA 402

…cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Jervis [1993] 1 Qd R 643, considered R v Laracy [2007] 180 A Crim R 19; [2007] VSC 19, cited R v Liddle [2006] QCA 45, cited R v Mallon [1997] QCA 58, cited R v Mardlin [2004] WASC 73, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v NP;…
R v Harbas
[2013] QCA 159

…– 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 appli…
R v OQ
[2011] QCA 348 Para 1

…inal Code s 11(2); Acts Interpretation Act 1954 (Qld) s 20C; Penalties and Sentences Act 1992 (Qld) s 180. See also R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439 at [32] – [34].…
R v BCA
[2011] QCA 278

…considered R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, cited R v H [2001] QCA 167, cited R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, cited R v Isaacs (1997) 41 NSWLR 374, distinguished R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v O’Shea [2011] QCA 18, cited R v P; ex parte A-G [2001] Q…
R v BAW
[2005] QCA 334

…Daswani [2005] QCA 167; (2005) 53 ACSR 675, cited R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, cited R v Ianculescu [1999] QCA 439; [2000] 2 Qd R 521, considered R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, distinguished R v Orchard [2005] QCA 141; CA No 11 of 2005, 6 May 2005, cited R v SAG [2004] QCA 286; (20…
R v Corrigan
[2001] QCA 251 Para 1

…t the head sentence should be reduced to seven years and that otherwise the sentence should remain unaltered. [6]CA 338 of 1997, 18 November 1997. [7][1999] QCA 439; CA 194 of 1999, 22 October 1999. [8][1999] QCA 14; CA 311 of 1998, 5 February 1999.…

View all 13 citing cases →

Cases cited in this decision · 6 of 6 shown

R v S
[1999] QCA 311 Para 31

…999] QCA 21 the court was not prepared to depart from the view expressed in the earlier judgments. In S (CA No 462 of 1998; judgment 10 August 1999); [1999] QCA 311 the court reaffirmed what it had said in these judgments after referring to the doubts expressed in Truong .…
R v Truong
[1999] QCA 21 Para 31

…v Mason and Saunders (1998) 2 Qd R 186. Whilst reservations were expressed on this subject in Truong (CA No 438 of 1998; judgment 19 February 1999); [1999] QCA 21 the court was not prepared to depart from the view expressed in the earlier judgments. In S (CA No 462 of 1998; judgment 10 August 1999); [1999] QCA…
R v Mallard and White
[1998] QCA 59 Para 31

…ior to 1 July 1997; see Inkerman (CA No 294 of 1997; judgment 29 August 1997), Mallard and White (CA No 450 and 452 of 1997; judgment 17 April 1998); [1998] QCA 59, R v Mason and Saunders (1998) 2 Qd R 186. Whilst reservations were expressed on this subject in Truong (CA No 438 of 1998; judgment 19 February 1999…
Walsh v Tattersall
[1996] HCA 26

…S CA No 462 of 1998, 10 August 1999; [1999] QCA 311 Walsh v Tattersall (1996) 70 ALJR 884…
R v D & Attorney-General of Queensland
[1995] QCA 332 Para 1

…o-operation of that kind was discussed. The only Queensland case which I have found containing such discussion is D (CA No 13 of 1995, 4 August 1995; [1995] QCA 332). D was a young heroin trafficker, on a smaller scale than this applicant; the circumstances of this applicant's case are fully explained in the reas…
Malvaso v the Queen
[1989] HCA 58 Para 5

…the nature and extent of the co-operation can be given. But one can identify relevant principles. The reasons given in D as well as those in Malvaso (1989) 168 CLR 227 at 129 and Thompson (1994) 76 ACrimR 75 are of assistance. It is enough to quote from the High Court case the passage relied on in D : "It would be t…

Legislation cited in this decision · 3

Acts Interpretation Act 1954 (Qld)
20C(1) 1 mention
Acts Interpretations Act 1954 (Qld)
1 mention
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 4)

CITATION:	R v Ianculescu [1999] QCA 439
PARTIES:	R v IANCULESCU, Costea (Applicant/Appellant)
FILE NO/S:	CA No 194 of 1999 SC No 143 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave to appeal against sentence
ORIGINATING	Supreme Court at Brisbane
COURT:
DELIVERED ON:	22 October 1999
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 1999
JUDGES:	Pincus JA (diss in part), Ambrose and Cullinane JJ
ORDER:	Application for leave to appeal against sentence granted. Appeal allowed, but only to the extent of setting aside the sentences on each of counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – FACTUAL BASIS FOR SENTENCE – PROOF OF EVIDENCE
– STANDARD OF PROOF – relevant principles – s 13A Penalties and Sentences Act 1992
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS - QUEENSLAND –
amendment of sentencing legislation – application to offences committed prior to commencement – Criminal Code s 2 s 11(2); s 567(3) - Acts Interpretation Act 1954 s 20C(1) - Penalties and Sentences Act 1992 Pt 9A; s 180

COUNSEL:	Mr A J Glynn SC for the applicant/appellant Mr D L Bullock for the respondent
SOLICITORS:	Price & Roobottom for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent