R v Le - [2019] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

R v Le [2019] QCA 57

PARTIES:

R
v
LE, Minh Gia-Hao Kevin
(applicant)

FILE NO/S:

CA No 346 of 2018
DC No 2167 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence – 10 December 2018 (O’Brien CJ DCJ)

DELIVERED ON:

9 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2019

JUDGES:

Philippides JA and Boddice and Bradley JJ

ORDERS:

1.   The application for leave to adduce evidence be refused.

2.   The application for leave to appeal be granted.

3.   The appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant filed an application for leave to adduce evidence at the application for leave to appeal – where the evidence was a report by a clinical psychologist – where the applicant contended the new report went to his culpability for his offending – where a report by another psychologist was tendered at sentencing – whether the applicant should be allowed to adduce the new psychologist’s report on appeal

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 possessing the dangerous drug cannabis in a quantity in excess of 500 grams – where the applicant was sentenced to two and a half years imprisonment, to be suspended after the applicant had served eight months imprisonment, for an operational period of three years – where the applicant was relatively young, with no prior criminal history – where the offending was an isolated incident – whether the sentence was manifestly excessive

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v O’Shea[2011] QCA 18, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

COUNSEL:

G M McGuire for the applicant
P McCarthy for the respondent

SOLICITORS:

Bosscher Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES JA: For the reasons given by Boddice J, I agree with the orders proposed by his Honour.
BODDICE J: On 22 October 2018, the applicant pleaded guilty to one count of possessing the dangerous drug cannabis in a quantity in excess of 500 grams. The cannabis was contained in two suitcases the applicant had brought with him as luggage when he flew from Brisbane to Sydney on 20 June 2018. The suitcases were found to contain a total of 76.05 pounds or 34.5 kilograms of cannabis.
On 10 December 2018, the applicant was sentenced to imprisonment for a period of two and a half years. It was ordered that sentence be suspended, after the applicant had served eight months imprisonment, for an operational period of three years.
On 19 December 2018, the applicant filed an application for leave…

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 Le

Details

AGLC: R v Le [2019] QCA 57
Case: [2019] QCA 57
Decision Date: 9 April 2019

CaseChat Overview and Summary

The case of R v Le involves the applicant appealing against his sentence for possessing the dangerous drug cannabis in a quantity in excess of 500 grams. The applicant, who had no prior criminal history and was relatively young at the time of the offence, pleaded guilty and was sentenced to two and a half years imprisonment, to be suspended after serving eight months imprisonment, for an operational period of three years. The applicant sought leave to adduce a new report by a clinical psychologist, Dr Hatzipetrou, at the application for leave to appeal, arguing that the report demonstrated that he was likely affected by depression and anxiety at the time of the offending, impacting his capacity for reasoning and judgment. The applicant contended that this new evidence should be considered as it went to his culpability for the offending. The court was required to decide whether the applicant should be allowed to adduce the new psychologist’s report on appeal and whether the sentence was manifestly excessive.

The court considered the grounds for interference with the sentence, particularly whether the new evidence should be allowed and whether the sentence was manifestly excessive. In relation to the new evidence, the court noted that the applicant had already had the opportunity to present a psychologist’s report at the sentencing hearing, and the new report did not significantly differ from the previous one. The court held that the applicant was not entitled to lead the new evidence as it did not meet the threshold for exceptional circumstances. Regarding the sentence, the court found that while the applicant was youthful and had no prior criminal history, the offence involved a significant quantity of cannabis and the applicant’s motivation was financial gain. The court concluded that the sentence was not manifestly excessive.

The application for leave to adduce evidence was refused, and the application for leave to appeal was granted. However, the appeal against sentence was dismissed. The court held that the sentence was appropriate and not manifestly excessive given the circumstances of the case.

Orders

Orders of the court

1. The application for leave to adduce evidence be refused.

2. The application for leave to appeal be granted.

3. The appeal against sentence be dismissed.

Background

Background to the litigation

On 13 March 2019, the applicant filed an application for leave to adduce evidence at the application for leave to appeal. The evidence was a report by Dr Hatzipetrou, a clinical psychologist. The applicant contended the report suggested the applicant was likely to have been affected by depression and anxiety at the time of the offending, factors which are likely to have impacted on his capacity for reasoning and judgment and thereby relevant to culpability for his offending.Factual background The applicant was born on 7 September 1997. He had no previous criminal history. The applicant’s plea of guilty was entered on the basis he possessed the cannabis with a commercial purpose and that he was a paid drug courier. At the sentence hearing it was submitted the cannabis could yield between $136,000 and $380,000, if sold in wholesale amounts. The Crown submitted the applicant’s conduct involved brazen offending using a commercial flight to transfer this significant quantity of cannabis from interstate, with the applicant’s motivation being quick money, as it was a lucrative opportunity. The Crown accepted the applicant was youthful and had entered an early plea of guilty. Notwithstanding those circumstances, the Crown submitted for a sentence of imprisonment in the order of four years. The defence submitted a head sentence in the order of two and half years be imposed, with either immediate release or release after serving up to eight months imprisonment. The defence relied upon the applicant’s early plea of guilty, lack of criminal history, youthfulness and the contents of a psychologist’s report and numerous references. In submitting for a head sentence of that order, the defence acknowledged the applicant chose to transport the drugs for profit. It was acknowledged the applicant expected to be paid some money for couriering the drugs. It was submitted the applicant was in financial difficulty at the time. His background was described as a young man who had responsibility thrust upon him at an early age, as his parents were absent. He was helping his grandmother raise his younger siblings. It was submitted that his grandmother was now quite unwell and the applicant had responsibilities as a carer. It was also submitted that at the time, the applicant was quite depressed and isolated from people. The psychologist’s report relied upon at the sentencing hearing was provided by Carla Ferrari. In it, she opined that having regard to her psychometric assessment, the applicant’s clinical presentation and the available collateral information, diagnoses of major depressive disorder, recurrent, moderate and generalised anxieties disorder were indicated, as was evidence of personality traits, although they were likely due to responses being artificially elevated in light of his current mental state. Ms Ferrari further opined that the applicant’s offending behaviour appeared to be in contrast to his usual character and behaviour and that it seemed that depression and anxiety symptoms at the time affected his judgment, emotional regulation, ability to make rational decisions and to process information effectively and to evaluate future outcomes. Ms Ferrari opined the applicant was a low risk of further recidivism.Sentencing remarks

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 Le [2019] QCA 57
PARTIES:	R v LE, Minh Gia-Hao Kevin (applicant)
FILE NO/S:	CA No 346 of 2018 DC No 2167 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence – 10 December 2018 (O’Brien CJ DCJ)
DELIVERED ON:	9 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2019
JUDGES:	Philippides JA and Boddice and Bradley JJ
ORDERS:	1. The application for leave to adduce evidence be refused. 2. The application for leave to appeal be granted. 3. The appeal against sentence be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE – where the applicant filed an application for leave to adduce evidence at the application for leave to appeal – where the evidence was a report by a clinical psychologist – where the applicant contended the new report went to his culpability for his offending – where a report by another psychologist was tendered at sentencing – whether the applicant should be allowed to adduce the new psychologist’s report on appeal 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 possessing the dangerous drug cannabis in a quantity in excess of 500 grams – where the applicant was sentenced to two and a half years imprisonment, to be suspended after the applicant had served eight months imprisonment, for an operational period of three years – where the applicant was relatively young, with no prior criminal history – where the offending was an isolated incident – whether the sentence was manifestly excessive Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v O’Shea[2011] QCA 18, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
COUNSEL:	G M McGuire for the applicant P McCarthy for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent