R v Kax

Case [2020] QCA 218 7 October 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

R v KAX [2020] QCA 218

PARTIES:

R
v
KAX
(applicant)

FILE NO/S:

CA No 109 of 2020
SC No 69 of 2019
SC No 51 of 2020
SC No 56 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 30 April 2020 (Crow J)

DELIVERED ON:

7 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2020

JUDGES:

Philippides and Mullins JJA and Brown J

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Set aside the sentence imposed by the primary judge on 30 April 2020 for count 1 including the serious violent offence declaration and, in lieu, sentence the applicant to imprisonment for nine years and 10 months.

4.   Confirm the other sentences and orders imposed by the primary 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 unlawfully trafficking in dangerous drugs – where the trafficking was over a period of five months – where the applicant was sentenced to imprisonment for 10 years and 10 months – where the applicant had been sexually assaulted whilst in juvenile detention – where the assaults caused the applicant to develop psychiatric conditions that contributed to his drug addiction which was one of the reasons for his trafficking – where the sentencing judge accepted that the applicant’s drug addiction was the result of the sexual assaults – where the sentencing judge accepted that harsher conditions in the prison due to the COVID-19 pandemic was a mitigating factor – whether there was an error in the sentencing – whether the sentencing judge failed to moderate the sentence for the applicant’s psychiatric conditions and the effect of COVID-19 on prison conditions

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Feakes[2009] QCA 376, considered
R v Nunn[2019] QCA 100, considered
R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, cited
R v Safi[2015] QCA 13, considered
R v Stasiak & Anor, unreported, Supreme Court of Queensland – Cairns, Henry J, Indictment No 1 of 2019, 4 August 2020, considered
R v Tran; Ex parte Attorney-General(Qld)[2018] QCA 22, considered

COUNSEL:

J P Feely for the applicant
J M Phillips for the respondent

SOLICITORS:

AW Bale & Son Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES JA: I agree with the orders proposed by Mullins JA for the reasons given by her Honour.
MULLINS JA: The applicant pleaded guilty in the Supreme Court to unlawfully trafficking in dangerous drugs (count 1) and the unlawful supply of a category H weapon (count 2). The trafficking period was particularised over a period of five months between 22 August 2017 and 24 January 2018. He also…

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 Kax

Details

AGLC: R v KAX [2020] QCA 218
Case: [2020] QCA 218
Decision Date: 7 October 2020

CaseChat Overview and Summary

The appellant in this case pleaded guilty to unlawfully trafficking in dangerous drugs over a period of five months. He was sentenced to imprisonment for 10 years and 10 months by the sentencing judge. The appellant had a history of sexual assault while in juvenile detention, which led to psychiatric conditions that contributed to his drug addiction, a factor in his trafficking. The sentencing judge acknowledged these conditions and the impact of COVID-19 on prison conditions as mitigating factors. The appellant sought leave to appeal against his sentence, arguing that it was manifestly excessive or inadequate, and that the judge failed to sufficiently moderate the sentence for his psychiatric conditions and the prison conditions.

The legal issues before the court were whether there was an error in the sentencing and whether the sentencing judge failed to adequately moderate the sentence for the appellant's psychiatric conditions and the effect of COVID-19 on prison conditions. The court needed to consider whether the sentence imposed was manifestly excessive or inadequate, taking into account the totality of the circumstances, including the appellant's background, his psychiatric conditions, and the impact of COVID-19 on prison conditions.

The court found that the sentencing judge did not adequately moderate the sentence for the appellant's psychiatric conditions and the effect of COVID-19 on prison conditions. The court considered that the appellant's drug addiction, which was a result of the sexual assaults he had endured, and the harsher prison conditions due to COVID-19, warranted a more significant reduction in the sentence. The court allowed the appeal and set aside the sentence imposed by the primary judge on 30 April 2020 for count 1, including the serious violent offence declaration, and, in lieu, sentenced the appellant to imprisonment for nine years and 10 months. The court confirmed the other sentences and orders imposed by the primary judge.

The orders of the court were that the application for leave to appeal against the sentence was granted, the appeal was allowed, the sentence imposed by the primary judge was set aside, and, in lieu, the appellant was sentenced to imprisonment for nine years and 10 months. The other sentences and orders imposed by the primary judge were confirmed.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentence imposed by the primary judge on 30 April 2020 for count 1 including the serious violent offence declaration and, in lieu, sentence the applicant to imprisonment for nine years and 10 months.

4. Confirm the other sentences and orders imposed by the primary 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v KAX [2020] QCA 218

Most Recent Citation

R v Rose [2020] QCA 234

Cases citing this decision · 7 of 7 shown

R v Liu
[2024] QCA 58 Para 3

…drugs “so that he has promising prospects of rehabilitation when he is released from custody” – [35]. [8][2009] QCA 376. In R v KAX [2020] QCA 218, [37], this Court acknowledged the currency of the guidance given in Feakes .…
R v Atasoy
[2023] QCA 121 Para 28

…ing what is an appropriate allowance in all of the circumstances: R v Phillips (2008) 188 A Crim R 133 at [43]-[46].” [28](2020) 285 A Crim R 81; [2020] QCA 218, [31].…
RvCOLEGATE, Philip Paul
[2022] QCA 148

…r you this time around”. He said that having regard to those matters, he would “reduce the penalty” accordingly, for which he cited R v KAX [2020] QCA 218. It therefore appears that his Honour did have regard to the relatively heavy burden of his incarceration and pre-sentence custody. Otherwise, his brain injury…
R v Volkov
[2022] QCA 57 Para 21

…ng of schedule 1 drugs for lengthy periods of time.[29] Those factors support a sentence of 10 to 12 years, even where there is a plea of guilty. [26][2020] QCA 218. [27][2020] QCA 186. [28][2020] QCA 11. [29]See also statement of Ryan J in sentencing remarks in R v Cross; Cross and Neale (1 November 2021, Indict…
Bird v Commissioner of Police
[2021] QDC 49 Para 13

…on or allowance is made seems to be a matter of instinctive synthesis rather than mathematical calculation. This difficulty was identified in R v KAX [2020] QCA 218 at [31] Mullins JA. In R v Rose [2020] QCA 234, Sofronoff P at [8] considered the COVID-19 circumstance did not render a sentence severe because no r…
R v East
[2021] QCA 54 Para 23

…ntly impact on his family. The circumstances of the ongoing pandemic are also likely render any time served in custody more difficult.[9] [9] R v KAX [2020] QCA 218.…
R v Rose
[2020] QCA 234 Para 8

…o warrant reducing his term of imprisonment.[1] In any case, the restrictions imposed from time to time will change as conditions change. [1] R v KAX [2020] QCA 218 at [31].…

View all 7 citing cases →

Cases cited in this decision · 9 of 9 shown

R v King
[2020] QCA 9 Para 19

…fi [2015] QCA 13, R v Barker [2015] QCA 215, R v Tran ; Ex parte Attorney-General (Qld) [2018] QCA 22, R v Nunn [2019] QCA 100 and R v King [2020] QCA 9.…
R v Nunn
[2019] QCA 100 Para 19

…eakes [2009] QCA 376, R v Safi [2015] QCA 13, R v Barker [2015] QCA 215, R v Tran ; Ex parte Attorney-General (Qld) [2018] QCA 22, R v Nunn [2019] QCA 100 and R v King [2020] QCA 9.…
R v Tran; Ex parte
[2018] QCA 22 Para 19

…leas and included: R v Feakes [2009] QCA 376, R v Safi [2015] QCA 13, R v Barker [2015] QCA 215, R v Tran ; Ex parte Attorney-General (Qld) [2018] QCA 22, R v Nunn [2019] QCA 100 and R v King [2020] QCA 9.…
R v Barker
[2015] QCA 215 Para 19

…ities were for trafficking sentences imposed after guilty pleas and included: R v Feakes [2009] QCA 376, R v Safi [2015] QCA 13, R v Barker [2015] QCA 215, R v Tran ; Ex parte Attorney-General (Qld) [2018] QCA 22, R v Nunn [2019] QCA 100 and R v King [2020] QCA 9.…
R v Safi
[2015] QCA 13 Para 19

…environment). These authorities were for trafficking sentences imposed after guilty pleas and included: R v Feakes [2009] QCA 376, R v Safi [2015] QCA 13, R v Barker [2015] QCA 215, R v Tran ; Ex parte Attorney-General (Qld) [2018] QCA 22, R v Nunn [2019] QCA 100 and R v King [2020] QCA 9.…
R v Feakes
[2009] QCA 376 Para 19

…nd the current custodial environment). These authorities were for trafficking sentences imposed after guilty pleas and included: R v Feakes [2009] QCA 376, R v Safi [2015] QCA 13, R v Barker [2015] QCA 215, R v Tran ; Ex parte Attorney-General (Qld) [2018] QCA 22, R v Nunn [2019] QCA 100 and R v King [2020] QCA 9…
R v Phillips
[2008] QCA 284

…akes [2009] QCA 376, considered R v Nunn [2019] QCA 100, considered R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, cited R v Safi [2015] QCA 13, considered R v Stasiak & Anor , unreported, Supreme Court of Queensland – Cairns, Henry J, Indictment No 1 of 2019, 4 August 2020, considered R v Tran…
House v R
[1936] HCA 40

…pplicant’s psychiatric conditions and the effect of COVID-19 on prison conditions House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Feakes [2009] QCA 376, considered R v Nunn [2019] QCA 100, considered R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, cited R v Safi [2015] QCA 13, cons…
House v The King
63 WN 176 Para 13

…fending. This was an error in the exercise of the sentencing discretion by failing to take into account a material consideration, as described in House v The King (1936) 55 CLR 499, 505.…

Legislation cited in this decision · 1

Corrective Services Act 2006 (Qld)
1 mention (from Para 23)

CITATION:	R v KAX [2020] QCA 218
PARTIES:	R v KAX (applicant)
FILE NO/S:	CA No 109 of 2020 SC No 69 of 2019 SC No 51 of 2020 SC No 56 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Rockhampton – Date of Sentence: 30 April 2020 (Crow J)
DELIVERED ON:	7 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2020
JUDGES:	Philippides and Mullins JJA and Brown J
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Set aside the sentence imposed by the primary judge on 30 April 2020 for count 1 including the serious violent offence declaration and, in lieu, sentence the applicant to imprisonment for nine years and 10 months. 4. Confirm the other sentences and orders imposed by the primary 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 unlawfully trafficking in dangerous drugs – where the trafficking was over a period of five months – where the applicant was sentenced to imprisonment for 10 years and 10 months – where the applicant had been sexually assaulted whilst in juvenile detention – where the assaults caused the applicant to develop psychiatric conditions that contributed to his drug addiction which was one of the reasons for his trafficking – where the sentencing judge accepted that the applicant’s drug addiction was the result of the sexual assaults – where the sentencing judge accepted that harsher conditions in the prison due to the COVID-19 pandemic was a mitigating factor – whether there was an error in the sentencing – whether the sentencing judge failed to moderate the sentence for the applicant’s psychiatric conditions and the effect of COVID-19 on prison conditions House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Feakes[2009] QCA 376, considered R v Nunn[2019] QCA 100, considered R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, cited R v Safi[2015] QCA 13, considered R v Stasiak & Anor, unreported, Supreme Court of Queensland – Cairns, Henry J, Indictment No 1 of 2019, 4 August 2020, considered R v Tran; Ex parte Attorney-General(Qld)[2018] QCA 22, considered
COUNSEL:	J P Feely for the applicant J M Phillips for the respondent
SOLICITORS:	AW Bale & Son Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent