R v Lba - [2023] QCA 93

SUPREME COURT OF QUEENSLAND

CITATION:

R v LBA [2023] QCA 93

PARTIES:

R
v
LBA
(applicant)

FILE NO/S:

CA No 247 of 2022
SC No 108 of 2022
SC No 117 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 19 October 2022 (Henry J)

DELIVERED ON:

9 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2023

JUDGES:

Dalton and Boddice JJA and Crow J

ORDER:

Leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug and other drug offences committed at the conclusion of the trafficking period – where the applicant was sentenced to an effective head sentence of three years and seven months imprisonment, to be suspended after serving 10 months imprisonment, for an operational period of five years – where the applicant provided significant cooperation to police pursuant to pursuant to sections 13A and 13B of the Penalties and Sentences Act 1992 (Qld) – where the applicant provided further assistance in the form of AB v The Queen cooperation – whether a sentence requiring the applicant to serve a period of actual custody was unreasonable or plainly unjust – whether the sentence imposed was manifestly excessive, in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 13A, s 13B

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
R v KAK [2013] QCA 310, cited
R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92, cited

COUNSEL:

M J Copley KC for the applicant
S L Dennis for the respondent

SOLICITORS:

McGinness & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: I agree with the order proposed by Boddice JA and with his reasons.
BODDICE JA: On 17 October 2022, the applicant pleaded guilty to one count of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of 200 grams, and two counts of possessing a dangerous drug in excess of two grams. The applicant also pleaded guilty to one summary charge of possessing utensils or pipes that had been used.
On 19 October 2022, the applicant was sentenced to three years and seven months imprisonment on the count of trafficking, to be suspended after serving 10 months imprisonment, for an operational period of five years. The applicant was convicted and not further punished in respect of the other counts. He was sentenced to one month imprisonment in respect of the summary charge, to be served concurrently.
The applicant seeks leave to appeal his sentence. Should leave be granted, the sole ground of appeal is that the sentence imposed for the trafficking count was manifestly excessive, in all the circumstances.
Offences
The trafficking count involved aiding others to carry on their wholesale business…

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 Lba

Details

AGLC: R v Lba [2023] QCA 93
Case: [2023] QCA 93
Decision Date: 9 May 2023

CaseChat Overview and Summary

The case of R v Lba involved an appeal against the sentence imposed on the applicant who had pleaded guilty to drug trafficking and related offences. The applicant was sentenced to an effective head sentence of three years and seven months imprisonment, suspended after 10 months, with an operational period of five years. The applicant had provided significant cooperation to police under sections 13A and 13B of the Penalties and Sentences Act 1992 (Qld) and further assistance in the form of AB v The Queen cooperation. The central issue before the court was whether the requirement for the applicant to serve a period of actual custody was unreasonable or plainly unjust, and whether the sentence imposed was manifestly excessive in all the circumstances.

The court examined the nature and extent of the applicant's involvement in the drug trafficking operation. The applicant's participation was real and significant; he knowingly stored large quantities of drugs and cash and was found in possession of a substantial quantity of Schedule 1 drugs at the conclusion of the trafficking period. The court recognised the importance of encouraging offenders to cooperate but also emphasised the need to balance this with the seriousness of the offending conduct. The sentencing judge had appropriately reflected the applicant's cooperation and mitigating personal circumstances in the imposition of the effective head sentence. The court concluded that requiring the applicant to serve 10 months in actual custody was proportionate to the gravity of his offending and his particular circumstances.

In reaching its decision, the court highlighted that while the applicant's cooperation was substantial, it did not warrant a complete discount in the sentence to zero actual imprisonment. Such a reduction would have disproportionately credited the applicant for his cooperation while ignoring the seriousness of his involvement in the trafficking operation. The court found no misapplication of principle by the sentencing judge and determined that the sentence imposed was not manifestly excessive. The appeal against the sentence was therefore dismissed, and leave to appeal was refused.

Leave to appeal be refused.

Orders

Orders of the court

Leave to appeal be refused.

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

The applicant pleaded guilty to aiding in a wholesale trafficking business operated by others. He was a mature aged offender. His participation was real and significant. He knowingly stored large quantities of drugs and cash. At the conclusion of the trafficking period, he was found in possession of a substantial quantity of three separate Schedule 1 drugs, which he was transporting for storage. Such conduct rightly called for the imposition of a period of not insignificant actual imprisonment, notwithstanding the applicant’s significant cooperation, pursuant to s 13A and 13B of the Act.Conclusion A requirement that the applicant serve 10 months in actual custody, for such significant involvement in aiding a wholesale trafficking operation, was neither plainly unreasonable nor unjust. There was no misapplication of principle by the sentencing judge. The sentence imposed was not manifestly excessive.Order I would order:1. Leave to appeal be refused. CROW J: I agree.

Ratio Decidendi

Legal Principle Established

The respondent submits that whilst the encouragement of offenders to inform is of high public policy, there must be a balance in the exercise of the discretion to discount the sentence for that cooperation. A reduction so that the applicant served no time in actual custody would have resulted in disproportionate credit being given for that cooperation, ignoring the seriousness of his offending conduct.Consideration Whilst the applicant cooperated by entering early pleas of guilty and making admissions of his own involvement, consistent with a greater involvement than that known by police, those factors, together with his strong mitigating personal circumstances and steps towards rehabilitation, were properly reflected in the imposition of what would have been the notional head sentence, but for his cooperation, pursuant to s 13A and s 13B of the Act. The applicant’s extensive and real assistance, pursuant to s 13A and s 13B, by the giving of truthful and significantly useful evidence in the prosecution of the principals of the trafficking operation, was also appropriately reflected by the imposition of an effective head sentence of three years and seven months imprisonment for the trafficking count. Once such a reduction had been made by the sentencing judge, it fell within a sound exercise of the sentencing discretion for the sentencing judge to determine that the applicant ought to serve a period of 10 months actual imprisonment. Such a sentence was proportionate to the objective gravity of the applicant’s offending and his particular circumstances.[3][3]R v KAK [2013] QCA 310 at [48], citing R v Sukkar (2006) 172 A Crim R 151 at 167. The applicant pleaded guilty to aiding in a wholesale trafficking business operated by others. He was a mature aged offender. His participation was real and significant. He knowingly stored large quantities of drugs and cash. At the conclusion of the trafficking period, he was found in possession of a substantial quantity of three separate Schedule 1 drugs, which he was transporting for storage. Such conduct rightly called for the imposition of a period of not insignificant actual imprisonment, notwithstanding the applicant’s significant cooperation, pursuant to s 13A and 13B of the Act.Conclusion A requirement that the applicant serve 10 months in actual custody, for such significant involvement in aiding a wholesale trafficking operation, was neither plainly unreasonable nor unjust. There was no misapplication of principle by the sentencing judge. The sentence imposed was not manifestly excessive.Order I would order:1. Leave to appeal be refused. CROW J: I agree.

CITATION:	R v LBA [2023] QCA 93
PARTIES:	R v LBA (applicant)
FILE NO/S:	CA No 247 of 2022 SC No 108 of 2022 SC No 117 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 19 October 2022 (Henry J)
DELIVERED ON:	9 May 2023
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2023
JUDGES:	Dalton and Boddice JJA and Crow J
ORDER:	Leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug and other drug offences committed at the conclusion of the trafficking period – where the applicant was sentenced to an effective head sentence of three years and seven months imprisonment, to be suspended after serving 10 months imprisonment, for an operational period of five years – where the applicant provided significant cooperation to police pursuant to pursuant to sections 13A and 13B of the Penalties and Sentences Act 1992 (Qld) – where the applicant provided further assistance in the form of AB v The Queen cooperation – whether a sentence requiring the applicant to serve a period of actual custody was unreasonable or plainly unjust – whether the sentence imposed was manifestly excessive, in all the circumstances Penalties and Sentences Act 1992 (Qld), s 13A, s 13B AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited R v KAK [2013] QCA 310, cited R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92, cited
COUNSEL:	M J Copley KC for the applicant S L Dennis for the respondent
SOLICITORS:	McGinness & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent