R v. Ly; R v Kyprianou - [2008] QCA 149

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ly; R v Kyprianou [2008] QCA 149

PARTIES:

R
v
LY, Long Tran
(applicant)

R
v
KYPRIANOU, George
(applicant)

FILE NO/S:

CA No 251 of 2007
CA No 263 of 2007
SC No 437 of 2006
SC No 485 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

2 April 2008

JUDGES:

McMurdo P, Fraser JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. In CA No 251 of 2007; application for leave to appeal refused.
2. In CA No 263 of 2007; application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicants were involved, with others, in a sophisticated heroin trafficking operation – both applicants pleaded guilty to trafficking heroin over 11 month periods – Ly was sentenced to 12 years imprisonment and declared to be convicted of a serious violent offence – Kyprianou was sentenced to 10 years and 6 months imprisonment and declared to be convicted of a serious violent offence – neither applicant was a heroin addict, and each participated in the trafficking for profit – Kyprianou had a slightly lower level of involvement in the operation than Ly – references and a psychological report tendered on Kyprianou's behalf showed good prospects of rehabilitation – whether the sentences were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – Kyprianou settled an action against him by the Commonwealth DPP under the Proceeds of Crime Act 2002 (Cth), forfeiting property the proceeds of the trafficking to the Commonwealth – whether co-operation with Commonwealth authorities is a mitigating factor when being sentenced for a Queensland offence – whether Kyprianou had co-operated with the Commonwealth authorities – whether the sentencing discretion miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – Kyprianou returned to Australia from Cyprus knowing that he would be arrested upon his arrival – whether his voluntary return put Kyprianou in a special category of case requiring extraordinary leniency – whether the sentencing discretion miscarried

Criminal Proceeds Confiscation Act 2002 (Qld), s 260
Drugs Misuse Act 1986 (Qld), s 5(a)
Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 9(2)(r), pt 9A
Proceeds of Crime Act 2002 (Cth), s 320

R v Bradforth [2003] QCA 183, cited
R v Kashton [2005] QCA 70, considered
R v Nabhan; R v Kostopoulos [2007] QCA 266, considered
R v Omer-Noori [2006] QCA 311, considered
R v Raciti [2004] QCA 359

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.

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Details

Case: [2008] QCA 149
Decision Date: 13 June 2008

CaseChat Overview and Summary

Two applicants, Ly and Kyprianou, were involved in a large-scale heroin trafficking operation in Australia. Both pleaded guilty to trafficking heroin over extended periods, with Ly receiving a 12-year sentence and Kyprianou receiving 10.5 years. Both were declared to have committed serious violent offences. Neither applicant was a heroin addict, and both participated for financial gain, with Kyprianou having a slightly lesser role. The applicants appealed against their sentences, arguing they were manifestly excessive. They also raised several grounds for interference with the sentencing discretion.

The legal issues included whether the sentences were manifestly excessive, whether cooperation with Commonwealth authorities could be a mitigating factor in sentencing for a Queensland offence, and whether Kyprianou's voluntary return from Cyprus constituted a special category warranting extraordinary leniency. The court examined the applicants' roles in the trafficking operation, their prospects of rehabilitation, and the circumstances of Kyprianou's return to Australia. The court assessed whether the sentencing discretion had miscarried based on these factors.

The court found that the sentences were not manifestly excessive, taking into account the severity of the crimes and the need for deterrence and denunciation. Regarding cooperation with Commonwealth authorities, the court determined that this factor was not relevant to sentencing under Queensland law. Kyprianou's voluntary return did not place him in a special category requiring extraordinary leniency, as the court held this factor was not sufficient to interfere with the sentencing discretion. The appeals against the sentences were dismissed, and the applications for leave to appeal were refused.

The final orders of the court were to refuse the applications for leave to appeal in both cases. The sentences imposed on Ly and Kyprianou were upheld, and no further appeal was permitted.

Orders

Orders of the court

1. In CA No 251 of 2007; application for leave to appeal refused.

2. In CA No 263 of 2007; application for leave to appeal 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ly; R v Kyprianou [2008] QCA 149
PARTIES:	R v LY, Long Tran (applicant) R v KYPRIANOU, George (applicant)
FILE NO/S:	CA No 251 of 2007 CA No 263 of 2007 SC No 437 of 2006 SC No 485 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	2 April 2008
JUDGES:	McMurdo P, Fraser JA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In CA No 251 of 2007; application for leave to appeal refused. 2. In CA No 263 of 2007; application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – applicants were involved, with others, in a sophisticated heroin trafficking operation – both applicants pleaded guilty to trafficking heroin over 11 month periods – Ly was sentenced to 12 years imprisonment and declared to be convicted of a serious violent offence – Kyprianou was sentenced to 10 years and 6 months imprisonment and declared to be convicted of a serious violent offence – neither applicant was a heroin addict, and each participated in the trafficking for profit – Kyprianou had a slightly lower level of involvement in the operation than Ly – references and a psychological report tendered on Kyprianou's behalf showed good prospects of rehabilitation – whether the sentences were manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – Kyprianou settled an action against him by the Commonwealth DPP under the Proceeds of Crime Act 2002 (Cth), forfeiting property the proceeds of the trafficking to the Commonwealth – whether co-operation with Commonwealth authorities is a mitigating factor when being sentenced for a Queensland offence – whether Kyprianou had co-operated with the Commonwealth authorities – whether the sentencing discretion miscarried CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – Kyprianou returned to Australia from Cyprus knowing that he would be arrested upon his arrival – whether his voluntary return put Kyprianou in a special category of case requiring extraordinary leniency – whether the sentencing discretion miscarried Criminal Proceeds Confiscation Act 2002 (Qld), s 260 Drugs Misuse Act 1986 (Qld), s 5(a) Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 9(2)(r), pt 9A Proceeds of Crime Act 2002 (Cth), s 320 R v Bradforth [2003] QCA 183, cited R v Kashton [2005] QCA 70, considered R v Nabhan; R v Kostopoulos [2007] QCA 266, considered R v Omer-Noori [2006] QCA 311, considered R v Raciti [2004] QCA 359