R v Kohl

Case [2012] QCA 344 4 December 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Kohl [2012] QCA 344

PARTIES:

R
v
KOHL, Carlo Konstantin
(applicant)

FILE NO/S:

CA No 271 of 2012
SC No 229 of 2011
SC No 1000 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders delivered 4 December 2012
Reasons delivered 7 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2012

JUDGES:

Muir, Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered 4 December 2012:

1.      Grant the application for leave to appeal.

2.      Allow the appeal with respect to the sentence imposed for trafficking in a dangerous drug in indictment no 229 of 2011.

(a)     Set aside the sentence of 4.5 years.

(b)    Instead impose a sentence of 3 years.

3.     (a)     Set aside the parole eligibility date of 29 January 2013.

(b)     Instead fix the parole eligibility date at 4 December 2012.

4. Otherwise affirm the sentences imposed below and the declarations made pursuant to s 159A of the Penalties and Sentences Act 1992.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of trafficking in two dangerous drugs and to numerous property offences, including burglary by breaking while armed (count 32) and bringing stolen goods into Queensland – where applicant sentenced to four and a half years imprisonment on count 32 and lesser concurrent sentences for other property offending, and to cumulative term of four and a half years imprisonment for trafficking offence, with parole eligibility date for combined sentences fixed after approximately 30 per cent of total – where drug trafficking only able to be charged due to admissions made by applicant – where applicant aged between 18 and 21 years when offences committed – where applicant contends sentencing judge failed to have proper regard to totality principle, insufficiently considered mitigating factors, and failed to show “special leniency” as discussed in AB v The Queen – whether sentence manifestly excessive in all the circumstances

Drugs Misuse Act 1986 (Qld)
Penalties and Sentences Act 1992 (Qld), s 159A

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Baker[2011] QCA 104, considered
R v Broad & Prior[2010] QCA 53, considered
R v Casagrande[2009] QCA 1, considered
R v Challacombe[2009] QCA 314, cited
R v Cutajar; ex parte Attorney-General (Qld) (1995) 85 A Crim R 280; [1995] QCA 570, cited
R v Diano, Brienza & Badari, unreported, Supreme Court of Queensland, Atkinson J, SC Nos 232, 268 & 231 of 2009, 6 July 2009, considered
R v Dunphy[2007] QCA 421, considered
R v Leu; R v Togia (2008) 186 A Crim R 240;…

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 Kohl

Details

AGLC: R v Kohl [2012] QCA 344
Case: [2012] QCA 344
Decision Date: 4 December 2012

CaseChat Overview and Summary

The applicant appealed against the sentence imposed by the District Court of Queensland for trafficking in two dangerous drugs and various property offences. The applicant was sentenced to a cumulative term of nine years imprisonment, with parole eligibility set after serving approximately 30 per cent of the total sentence. The applicant argued that the sentencing judge did not properly apply the totality principle, did not sufficiently consider mitigating factors, and did not show “special leniency” as discussed in AB v The Queen. The applicant contended that the sentence for the trafficking offence was manifestly excessive.

The court was required to determine whether the sentence for the trafficking offence was manifestly excessive, taking into account the totality principle and the mitigating factors. The court also needed to consider whether the sentencing judge appropriately exercised their discretion in setting the parole eligibility date. The applicant's age at the time of the offences, the admissions made by the applicant regarding the drug trafficking, and the circumstances of the property offences were relevant factors in the court's assessment.

The court found that the sentence for the trafficking offence was manifestly excessive, as the sentencing judge did not properly apply the totality principle and did not sufficiently consider the mitigating factors. The court noted that the applicant was between 18 and 21 years old when the offences were committed, and that the drug trafficking charge was only possible due to the applicant's admissions. The court also found that the parole eligibility date was set too late, and that the sentencing judge did not show “special leniency” as discussed in AB v The Queen. The court allowed the appeal with respect to the sentence for the trafficking offence, setting aside the original sentence of 4.5 years and imposing a new sentence of 3 years instead. The parole eligibility date was also set at 4 December 2012, rather than 29 January 2013. The court affirmed the sentences imposed for the other offences and the declarations made pursuant to s 159A of the Penalties and Sentences Act 1992.

The court granted leave to appeal, allowed the appeal in respect of the sentence for the trafficking offence, set aside the original sentence of 4.5 years and imposed a new sentence of 3 years, and fixed the parole eligibility date at 4 December 2012. The court otherwise affirmed the sentences imposed for the other offences and the declarations made pursuant to s 159A of the Penalties and Sentences Act 1992.

Orders

Orders of the court

Orders delivered 4 December 2012:

1. Grant the application for leave to appeal.

2. Allow the appeal with respect to the sentence imposed for trafficking in a dangerous drug in indictment no 229 of 2011.

(a) Set aside the sentence of 4.5 years.

(b) Instead impose a sentence of 3 years.

3. (a) Set aside the parole eligibility date of 29 January 2013.

(b) Instead fix the parole eligibility date at 4 December 2012.

4. Otherwise affirm the sentences imposed below and the declarations made pursuant to s 159A of the Penalties and Sentences Act 1992.

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

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Citations

R v Kohl [2012] QCA 344

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Baker [2011] QCA 104
Citation 1 (Para 1)

…ut the court commented that three years, as sought by the prosecutor below, was the appropriate sentence for this low level street offending. [29][2011] QCA 104. [30][2009] QCA 107. [31][2009] QCA 314.…
R v McQuillan [2011] QCA 5
Citation 2 (Para 1)

…rs but his offending was widespread and included the serious burglary in count 32. [36][1998] QCA 174. [37][2000] QCA 179. [38][2001] QCA 55. [39][2011] QCA 5. [40][2008] 186 A Crim R 240; [2008] QCA 201.…
R v Broad and Prior [2010] QCA 53
Citation 3 (Para 1)

…s, therefore, entitled to the AB discount. [15][2007] QCA 418. [16][2006] QCA 193. [17][2008] QCA 401. [18][2009] QCA 314. [19] R v Broad & Prior [2010] QCA 53.…
R v Challacombe [2009] QCA 314
Citation 4 (Para 1)

…trafficking case against him and he was, therefore, entitled to the AB discount. [15][2007] QCA 418. [16][2006] QCA 193. [17][2008] QCA 401. [18][2009] QCA 314. [19] R v Broad & Prior [2010] QCA 53.…
R v SBK [2009] QCA 107
Citation 5 (Para 1)

…ed that three years, as sought by the prosecutor below, was the appropriate sentence for this low level street offending. [29][2011] QCA 104. [30][2009] QCA 107. [31][2009] QCA 314.…
R v Casagrande [2009] QCA 1
Citation 6 (Para 1)

…roach to sentencing for trafficking in a schedule one drug was regarded as an “unusual approach”,[25] but the sentence was not increased. [24][2009] QCA 1. [25]At p 3 per de Jersey CJ.…
R v McAway [2008] QCA 401
Citation 7 (Para 1)

…e would have been no trafficking case against him and he was, therefore, entitled to the AB discount. [15][2007] QCA 418. [16][2006] QCA 193. [17][2008] QCA 401. [18][2009] QCA 314. [19] R v Broad & Prior [2010] QCA 53.…
R v Leu; R v Togia [2008] QCA 201
Citation 8 (Para 1)

…offending. Her Honour said that she had regard to the applicant’s youth and co-operation and early indication of a plea. [13][1998] QCA 174. [14][2008] QCA 201.…
R v. Dunphy [2007] QCA 421
Citation 9 (Para 1)

…king occupying two periods in aggregate of more than 12 months and involving substantial sums of money had to be recognised as serious offending. [33][2007] QCA 421.…
R v Mullins [2007] QCA 418
Citation 10 (Para 1)

…wledged that without his admissions there would have been no trafficking case against him and he was, therefore, entitled to the AB discount. [15][2007] QCA 418. [16][2006] QCA 193. [17][2008] QCA 401. [18][2009] QCA 314. [19] R v Broad & Prior [2010] QCA 53.…
R v Manning [2007] QCA 145
Citation 11 (Para 1)

…flict of evidence about her true involvement in the enterprise compared with that of her partner so as not to make it an apt comparable sentence. [32][2007] QCA 145.…
R v Tytherleigh [2006] QCA 193
Citation 12 (Para 1)

…his admissions there would have been no trafficking case against him and he was, therefore, entitled to the AB discount. [15][2007] QCA 418. [16][2006] QCA 193. [17][2008] QCA 401. [18][2009] QCA 314. [19] R v Broad & Prior [2010] QCA 53.…
R v Maguire [2001] QCA 55
Citation 13 (Para 1)

…ere important factors but his offending was widespread and included the serious burglary in count 32. [36][1998] QCA 174. [37][2000] QCA 179. [38][2001] QCA 55. [39][2011] QCA 5. [40][2008] 186 A Crim R 240; [2008] QCA 201.…
R v Mason [2000] QCA 179
Citation 14 (Para 1)

…dy. No doubt those were important factors but his offending was widespread and included the serious burglary in count 32. [36][1998] QCA 174. [37][2000] QCA 179. [38][2001] QCA 55. [39][2011] QCA 5. [40][2008] 186 A Crim R 240; [2008] QCA 201.…
AB v The Queen [1999] HCA 46
Citation 15

…e circumstances Drugs Misuse Act 1986 (Qld) Penalties and Sentences Act 1992 (Qld), s 159A AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Baker [2011] QCA 104, considered R v Broad & Prior [2010] QCA 53, considered R v Casagrande…
Postiglione v the Queen [1997] HCA 26
Citation 16

…t 1992 (Qld), s 159A AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Baker [2011] QCA 104, considered R v Broad & Prior [2010] QCA 53, considered R v Casagrande [2009] QCA 1, considered R v Challacombe [2009] QCA 314, cited R v Cut…
R v Cutajar [1995] QCA 570
Citation 17 (Para 1)

…manifestly excessive. [41] Postiglione v The Queen (1997) 189 CLR 295 at 304 per Dawson and Gaudron JJ; R v Cutajar; ex parte Attorney-General (Qld) [1995] QCA 570 at 8.…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 159A
2 mentions (from Para 1)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 1)

CITATION:	R v Kohl [2012] QCA 344
PARTIES:	R v KOHL, Carlo Konstantin (applicant)
FILE NO/S:	CA No 271 of 2012 SC No 229 of 2011 SC No 1000 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Orders delivered 4 December 2012 Reasons delivered 7 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2012
JUDGES:	Muir, Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered 4 December 2012: 1. Grant the application for leave to appeal. 2. Allow the appeal with respect to the sentence imposed for trafficking in a dangerous drug in indictment no 229 of 2011. (a) Set aside the sentence of 4.5 years. (b) Instead impose a sentence of 3 years. 3. (a) Set aside the parole eligibility date of 29 January 2013. (b) Instead fix the parole eligibility date at 4 December 2012. *4. Otherwise affirm the sentences imposed below and the declarations made pursuant to s 159A of the Penalties and Sentences Act* 1992.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to one count of trafficking in two dangerous drugs and to numerous property offences, including burglary by breaking while armed (count 32) and bringing stolen goods into Queensland – where applicant sentenced to four and a half years imprisonment on count 32 and lesser concurrent sentences for other property offending, and to cumulative term of four and a half years imprisonment for trafficking offence, with parole eligibility date for combined sentences fixed after approximately 30 per cent of total – where drug trafficking only able to be charged due to admissions made by applicant – where applicant aged between 18 and 21 years when offences committed – where applicant contends sentencing judge failed to have proper regard to totality principle, insufficiently considered mitigating factors, and failed to show “special leniency” as discussed in AB v The Queen – whether sentence manifestly excessive in all the circumstances Drugs Misuse Act 1986 (Qld) Penalties and Sentences Act 1992 (Qld), s 159A AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Baker[2011] QCA 104, considered R v Broad & Prior[2010] QCA 53, considered R v Casagrande[2009] QCA 1, considered R v Challacombe[2009] QCA 314, cited R v Cutajar; ex parte Attorney-General (Qld) (1995) 85 A Crim R 280; [1995] QCA 570, cited R v Diano, Brienza & Badari, unreported, Supreme Court of Queensland, Atkinson J, SC Nos 232, 268 & 231 of 2009, 6 July 2009, considered R v Dunphy[2007] QCA 421, considered R v Leu; R v Togia (2008) 186 A Crim R 240;…