SUPREME COURT OF QUEENSLAND
CITATION:
R v Maksoud [2016] QCA 115
PARTIES:
R
v
MAKSOUD, Luke Dillon
(applicant)FILE NO/S:
CA No 195 of 2015
SC No 609 of 2014
SC No 85 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 13 August 2015DELIVERED ON:
4 May 2016
DELIVERED AT:
Brisbane
HEARING DATE:
8 March 2016
JUDGES:
Margaret McMurdo P and Gotterson JA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Substitute for the sentence on Count 1 on Indictment 609 of 2014, a sentence of nine years’ imprisonment with a parole eligibility date fixed at 13 February 2019.
4. Set aside the serious violent offence declaration made at first instance.
5. The sentence imposed at first instance on both indictments are otherwise confirmed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to unlawful trafficking in, and possessing, the dangerous drug methylamphetamine, and possessing phones used in connection with drug trafficking – where the applicant was sentenced to 10 years’ imprisonment with a serious violent offence declaration for the trafficking offence, two years’ imprisonment for the possession of the phones, and five years’ imprisonment and the issuance of a drug offence certificate for the possession offence – where the applicant filed an application for leave to appeal against sentence, alleging that the sentence is manifestly excessive – where it is alleged that: (1) insufficient allowance was made for the applicant’s youth; (2) no allowance was made for the 376 days of pre-sentence custody; and (3) it is of no relevance to the applicant’s sentence that a co-offender is required to serve at least 80 per cent of his sentence – where another offender took advantage of the applicant’s naivety – where the learned sentencing judge was not referred to the applicant’s pre-sentence custody as a relevant consideration in sentencing – where an otherwise just sentence should not be harshened in order to achieve perceived parity or comity with the term of imprisonment of a co-offender – whether the sentence imposed is manifestly excessive
Drugs Misuse Act 1986 (Qld), s 5(a), s 9(1)(b), s 10(1)(b)
Penalties and Sentences Act 1992 (Qld), s 161BR v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, cited
R v Booth [2001] 1 Qd R 393; [1999] QCA 100, cited
R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, considered
R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, considered
R v Daphney[1999] QCA 69, cited
R v Fabre[2008] QCA 386, cited
R v Feakes[2009] QCA 376, considered
R v Gordon[2016] QCA 10, considered
R v Horne[2005] QCA 218, cited
R…
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- AGLC
- R v Maksoud [2016] QCA 115
- Case
- [2016] QCA 115
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant's appeal hinged on three main points: the influence of his youth, the consideration of pre-sentence custody, and the relevance of his co-offender's sentence in determining his own. The court examined the principle of parity in sentencing and whether it should be disregarded if it resulted in an excessive sentence for the more culpable offender. The court referenced R v Crossley, where it was held that the requirement for a co-offender to serve 80% of their sentence should not affect the sentencing of the greater offender. The applicant's counsel argued that this principle applied to their case, and the co-offender's sentence should not influence the applicant's sentence.
The court found that the applicant's sentence was indeed excessive, particularly in light of the influence that parity with the co-offender's sentence had on the original sentence. The court granted leave to appeal against the sentence and allowed the appeal, substituting the sentence on Count 1 with nine years' imprisonment, with parole eligibility set at 13 February 2019. The serious violent offence declaration was set aside, but the sentences on the other indictments were confirmed.
Orders
Orders of the court
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Substitute for the sentence on Count 1 on Indictment 609 of 2014, a sentence of nine years’ imprisonment with a parole eligibility date fixed at 13 February 2019.
4. Set aside the serious violent offence declaration made at first instance.
5. The sentence imposed at first instance on both indictments are otherwise confirmed.
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
Parity considerations: The sentencing remarks indicate that parity with McGinniss’s sentence played a highly influential role in setting the applicant’s sentence. The learned sentencing judge considered that McGinniss’s seniority in years was balanced by the applicant’s higher position in the drug distribution network. On this application, the respondent submits that the approach of the learned sentencing judge was correct at setting the sentence at 10 years’ imprisonment, or, alternatively, that if the applicant’s sentence is moderated to less than 10 years’ imprisonment, a serious violent offence declaration ought to be made in exercise of the discretion conferred by s 161B(3) of the Act, in the interests of maintaining comity with McGinniss’s sentence. At the hearing of the application, the Court invited written submissions on the significance for parity in sentencing an offender that a co-offender has been sentenced to a term of imprisonment for which a serious violent offence declaration must be made. The issue concerns the influence, if any, that the requirement that 80 per cent of the sentence must be served by the co-offender, is to have in sentencing the offender. The applicant submits that, consistently with decisions of this Court, the requirement is to have no influence. Reliance is placed on the opinion of Pincus JA, with whom McPherson JA agreed, expressed in R v Crossley.[52] In that case, the Court was pressed with an argument that the parity principle must be respected even if to do so involves reducing a head sentence below that which would have been imposed were it not for the 80 per cent requirement. Counsel for the applicant in that case invited the Court to adopt a rule that if a consequence of applying the requirement is to impose on the greater offender a non-parole period which is excessive by comparison with that imposed on the lesser offender, the head sentence for the greater offender must be reduced.[52][1999] QCA 223; (1999) 106 A Crim R 80. Pincus JA referred to an opinion expressed by Gaudron J in Siganto v The Queen[53] where her Honour stated that the principle of parity in sentencing had been displaced to the extent of the different treatment directed by a Northern Territory legislative provision which required 70 per cent of a term of imprisonment to be served for certain sexual offences. Pincus JA continued:“In my opinion, the law requires that where one of two co-offenders but not the other is caught by the 80% requirement, that circumstance is to be ignored in considering parity between the two. Perhaps some judges might in practice be inclined to be less severe in fixing the head sentence on the more serious offender, in those circumstances, but there is no justification in strict principle for doing so. The result is that in the present case one compares a 10 year head sentence with a 4 year head sentence. In contrast to the applicant, Banks had no relevant prior convictions; he was a few years younger than the applicant and was involved in only two of the offences. As to the relative criminality of Banks and the applicant, the learned sentencing judge, who heard evidence, found that it was the applicant and another person, not Banks, who suggested the commission of the offences; but the judge was not satisfied that Banks’ involvement arose from any direct threats on the applicant’s part. The judge sentenced on the basis, which is unchallenged, that the applicant played ‘the dominant role’.”[54]McMurdo P considered it unnecessary to determine the issue but noted that the argument advanced for the applicant there did not gain support from then recent decisions of this Court in R v Booth[55] and R v Daphney.[56][53][1998] HCA 74; (1998) 194 CLR 656 at [60].[54]At [27].[55][1999] QCA 100; [2001] 1 Qd R 393.[56][1999] QCA 69.