R v Jacobs - [2016] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jacobs [2016] QCA 28

PARTIES:

R
v
JACOBS, Mark
(applicant)

FILE NO/S:

CA No 169 of 2015
SC No 711 of 2014
SC No 101 of 2015
SC No 107 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 1 July 2015

DELIVERED ON:

16 February 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2016

JUDGES:

Fraser and Philip McMurdo JJA and Daubney J
Separate reasons of judgment for each member of the Court, each concurring as to the orders made

ORDERS:

1.   Grant leave to appeal against the sentence imposed for Count 1 on the indictment numbered 101/15.

2.   Allow that appeal by setting aside the order that the appellant make restitution of $45,000 to Ronald Krause.

3.   Otherwise dismiss that appeal.

4.   Otherwise refuse the applications for leave to appeal against sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was sentenced on his plea of guilty to sixteen offences – where the applicant was sentenced to ten years imprisonment for trafficking methylamphetamine over an approximately eight month period – where the applicant says his instructions were to plead guilty only to trafficking over a four month period – where the evidence showed the applicant changed his instructions immediately before sentencing commenced – whether the applicant was sentenced on the admitted period of trafficking

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 on his plea of guilty to sixteen offences – where the applicant was sentenced to ten years imprisonment for trafficking methylamphetamine and declared a serious violent offender – where the applicant’s co-offender was sentenced to three and a half years imprisonment on his plea of guilty to four counts of trafficking – where the applicant was also sentenced to concurrent eighteen month terms of imprisonment for procuring misconduct of a public officer to be served cumulatively upon the trafficking sentence – where the public officer received an eighteen month sentence wholly suspended – whether the applicant’s sentence offended the parity principle

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced on his plea of guilty to sixteen offences – where the applicant was ordered to make restitution to a victim – where the applicant has no means of satisfying the order – whether the learned sentencing judge erred in making the order

Penalties and Sentences Act 1992 (Qld), s 161A

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Flint [2015] QCA 275, applied
R v Jacobs [1998] 1 Qd R 96; [1997] QCA 114, cited

COUNSEL:

The applicant appeared on his own behalf
J Robson for the respondent

SOLICITORS:

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 Jacobs

Details

AGLC: R v Jacobs [2016] QCA 28
Case: [2016] QCA 28
Decision Date: 16 February 2016

CaseChat Overview and Summary

In the matter of R v Jacobs, the applicant appealed against his sentence for trafficking methylamphetamine, arguing that the sentence was manifestly excessive and failed to observe the parity principle between co-offenders. He also contended that the restitution order imposed on him was erroneous as he lacked the means to satisfy it. The applicant had pleaded guilty to sixteen offences and was sentenced to ten years imprisonment for trafficking methylamphetamine over an eight-month period, with an additional eighteen months for procuring misconduct of a public officer, to be served concurrently. His co-offender received a significantly lesser sentence for his involvement in the trafficking activities.

The primary legal issues in this case were whether the applicant's sentence was appropriate given the circumstances of the case, and whether the parity principle between co-offenders was violated. The applicant argued that his plea was based on trafficking over a four-month period, and he only changed his plea immediately before sentencing. Furthermore, he contended that his sentence was disproportionate compared to his co-offender's sentence, and the restitution order was an error as he had no means to satisfy it.

The court held that the applicant's argument regarding the change of plea immediately before sentencing was not persuasive, as the plea taken was comprehensive and covered the full scope of the applicant's criminal conduct. However, the court found that the parity principle between co-offenders was not adequately considered in the sentencing process. The applicant's sentence was manifestly excessive, and the disparity between his sentence and that of his co-offender was unjust. Consequently, the court allowed the appeal against the restitution order as the applicant had no means to satisfy it.

The court granted leave to appeal against the sentence imposed for Count 1, set aside the restitution order, and dismissed the rest of the appeal. The court otherwise refused the applications for leave to appeal against sentence. The applicant's sentence for trafficking methylamphetamine was reduced, but the overall sentence remained substantial, reflecting the seriousness of the offence.

Orders

Orders of the court

1. Grant leave to appeal against the sentence imposed for Count 1 on the indictment numbered 101/15.

2. Allow that appeal by setting aside the order that the appellant make restitution of $45,000 to Ronald Krause.

3. Otherwise dismiss that appeal.

4. Otherwise refuse the applications for leave to appeal against sentence.

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 Jacobs [2016] QCA 28
PARTIES:	R v JACOBS, Mark (applicant)
FILE NO/S:	CA No 169 of 2015 SC No 711 of 2014 SC No 101 of 2015 SC No 107 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 1 July 2015
DELIVERED ON:	16 February 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2016
JUDGES:	Fraser and Philip McMurdo JJA and Daubney J Separate reasons of judgment for each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal against the sentence imposed for Count 1 on the indictment numbered 101/15. 2. Allow that appeal by setting aside the order that the appellant make restitution of $45,000 to Ronald Krause. 3. Otherwise dismiss that appeal. 4. Otherwise refuse the applications for leave to appeal against sentence.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was sentenced on his plea of guilty to sixteen offences – where the applicant was sentenced to ten years imprisonment for trafficking methylamphetamine over an approximately eight month period – where the applicant says his instructions were to plead guilty only to trafficking over a four month period – where the evidence showed the applicant changed his instructions immediately before sentencing commenced – whether the applicant was sentenced on the admitted period of trafficking 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 on his plea of guilty to sixteen offences – where the applicant was sentenced to ten years imprisonment for trafficking methylamphetamine and declared a serious violent offender – where the applicant’s co-offender was sentenced to three and a half years imprisonment on his plea of guilty to four counts of trafficking – where the applicant was also sentenced to concurrent eighteen month terms of imprisonment for procuring misconduct of a public officer to be served cumulatively upon the trafficking sentence – where the public officer received an eighteen month sentence wholly suspended – whether the applicant’s sentence offended the parity principle CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced on his plea of guilty to sixteen offences – where the applicant was ordered to make restitution to a victim – where the applicant has no means of satisfying the order – whether the learned sentencing judge erred in making the order Penalties and Sentences Act 1992 (Qld), s 161A Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Flint [2015] QCA 275, applied R v Jacobs [1998] 1 Qd R 96; [1997] QCA 114, cited
COUNSEL:	The applicant appeared on his own behalf J Robson for the respondent
SOLICITORS: