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 2020DIVISION:
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, consideredCOUNSEL:
J P Feely for the applicant
J M Phillips for the respondentSOLICITORS:
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…
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- AGLC
- R v KAX [2020] QCA 218
- Case
- [2020] QCA 218
- Decision Date
CaseChat Overview and Summary
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
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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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