R v Matauaina - [2020] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

R v Matauaina [2020] QCA 274

PARTIES:

R
v
MATAUAINA, Matauaina Sonny
(applicant)

FILE NO/S:

CA No 30 of 2020
DC No 1773 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 13 February 2020 (Clare SC DCJ)

DELIVERED ON:

8 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2020

JUDGES:

Fraser JA, Boddice and Brown JJ

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal against sentence be allowed.

3.   Set aside the sentences imposed on Counts 1 and 4 and instead impose a term of imprisonment of three and a half years. Those terms of imprisonment, together with the other terms of imprisonment for counts 3, 9, 10 and 11 would be served concurrently with each other and cumulatively on the pre-existing sentence for the 2017 Offences.

4.   The applicant be eligible for parole on 25 June 2022.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where applicant sentenced to four and a half years’ imprisonment – where co-offender sentenced to five years imprisonment – where applicants sentence was cumulative upon previous sentence – where applicants sentence would not commence until he served three years – where co-offender served 12 months in custody prior to sentence – where co-offenders’ sentence was to commence on date of sentence – where both applicant and co-offender eligible for parole after serving a further 16 months – whether sentences imposed result in disparity such as to give rise to a justifiable sense of grievance in the applicant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to four and a half years cumulative on five year two month sentence – where 16 months pre-sentence taken into account on previous sentence – where total effective sentence was 11 years – where sentencing judge overlooked 16 months pre-sentence custody at second sentence – whether sentence was disproportionate to overall criminality

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered
R v Dang[2018] QCA 331, cited
R v Gordon (1994) 71 A Crim R 459, considered
R v Kruezi[2020] QCA 222, cited
R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, considered
R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited
R v Mill (1988) 166 CLR 59; [1988] HCA 70, considered
R v Symss (2020) 3 QR 336; [2020] QCA 17, considered

COUNSEL:

A Edwards for the applicant
C Wallis for the respondent

SOLICITORS:

A W Bale & Son for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Brown J and the orders proposed by her Honour.
BODDICE J:

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 Matauaina

Details

AGLC: R v Matauaina [2020] QCA 274
Case: [2020] QCA 274
Decision Date: 8 December 2020

CaseChat Overview and Summary

The case of R v Matauaina involved an appeal against sentence. The applicant, who had been sentenced to four and a half years’ imprisonment, argued that the sentence was inappropriate due to a disparity between his sentence and that of his co-offender, who was sentenced to five years. The applicant also argued that the sentence was disproportionate to his overall criminality, as it did not take into account the 16 months he had already served in custody prior to sentencing.

The court had to determine whether the applicant's sentence was appropriate in light of the parity principle and whether it was disproportionate to the overall criminality. The applicant argued that his sentence should have been no more than four years, and that the sentence should have been cumulative upon his previous sentence. The applicant also argued that the sentencing judge had overlooked the 16 months he had already served in custody, which was part of the effective sentence for his previous offences.

The court found that the applicant's arguments had merit and allowed the appeal against sentence. The court found that the applicant's sentence was inappropriate due to the disparity between his sentence and that of his co-offender. The court also found that the sentence was disproportionate to the overall criminality, as it did not take into account the 16 months the applicant had already served in custody. The court set aside the sentences imposed on counts 1 and 4 and imposed a term of imprisonment of three and a half years, to be served concurrently with the other terms of imprisonment and cumulatively on the pre-existing sentence for the 2017 Offences. The applicant was also made eligible for parole on 25 June 2022.

The court granted leave to appeal, allowed the appeal against sentence and set aside the sentences imposed on counts 1 and 4. The court imposed a term of imprisonment of three and a half years, to be served concurrently with the other terms of imprisonment and cumulatively on the pre-existing sentence for the 2017 Offences. The applicant was also made eligible for parole on 25 June 2022.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal against sentence be allowed.

3. Set aside the sentences imposed on Counts 1 and 4 and instead impose a term of imprisonment of three and a half years. Those terms of imprisonment, together with the other terms of imprisonment for counts 3, 9, 10 and 11 would be served concurrently with each other and cumulatively on the pre-existing sentence for the 2017 Offences.

4. The applicant be eligible for parole on 25 June 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The defence submitted that four years was an appropriate head sentence with parole eligibility extended by 16 or 12 months given the cumulative nature of the sentence. The defence particularly relied upon the applicant’s plea of guilty, his family support and his relative youth, together with the effect of his time in custody, as mitigating circumstances in his favour.Decision of learned sentencing Judge In sentencing the applicant, the learned sentencing Judge noted that it was his second involvement in “organised thuggery” and that he had been on bail at the time of the 2018 Offences.[4] Her Honour considered that while the applicant did not attend the house armed, he had to know that a gun was in the possession of Pain. Her Honour also noted while there were limited physical injuries inflicted, the applicant was the most physical of the offenders. In particular, her Honour considered that:[5]“The nature of your offending and your capacity to consciously carry out these sort of plans – and your willingness to resort to this kind of violence says something about your character.”[4]ARB at 42, Transcript of sentence 4/38.[5]AB 43/11-13. Her Honour stated that, in light of the previous offending, the need for personal deterrence was a strong factor. She also referred to the fact that the applicant had co-operated by pleading guilty, that his family was hopeful for him and stated that he had sought courses and work whilst in custody. She considered that his involvement in the 2018 Offences confirmed that he presented a risk to the community and that his crimes called for a sentence towards the upper end of the range to punish, deter and denounce. She imposed a sentence of four and a half years with parole eligibility at 25 September 2022, which was to be cumulative upon the sentence for the 2017 Offences, which she referred to as being a five year sentence. In doing so her Honour, extended the parole eligibility date by 16 months. That was less than one third of the four and a half year sentence, which would have been 18 months.Grounds of Appeal The applicant contends that the learned sentencing Judge failed to take into account parity considerations arising out of the sentence of the applicant’s co-accused Pain. He further claims that her Honour erred in her consideration of totality, having regard to the sentence for the 2017 Offences. The applicant contends that a four and a half year starting point for the applicant was appropriate, but claims that, her Honour failed to consider the effective sentence that had been imposed upon the applicant in relation to the 2017 Offences. The applicant relies on the fact that her Honour incorrectly referred to the applicant serving a five year sentence for the 2017 Offences when in fact, the effective sentence that he was serving was a six and a half year sentence. Further, the applicant contends that, when being sentenced for the 2018 Offences her Honour overlooked that he had served 16 months in pre-sentence custody, which was part of the effective sentence for the 2017 Offences, when determining whether the sentence was “just and appropriate”.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Matauaina [2020] QCA 274
PARTIES:	R v MATAUAINA, Matauaina Sonny (applicant)
FILE NO/S:	CA No 30 of 2020 DC No 1773 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 13 February 2020 (Clare SC DCJ)
DELIVERED ON:	8 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	21 September 2020
JUDGES:	Fraser JA, Boddice and Brown JJ
ORDERS:	1. Leave to appeal be granted. 2. The appeal against sentence be allowed. 3. Set aside the sentences imposed on Counts 1 and 4 and instead impose a term of imprisonment of three and a half years. Those terms of imprisonment, together with the other terms of imprisonment for counts 3, 9, 10 and 11 would be served concurrently with each other and cumulatively on the pre-existing sentence for the 2017 Offences. 4. The applicant be eligible for parole on 25 June 2022.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where applicant sentenced to four and a half years’ imprisonment – where co-offender sentenced to five years imprisonment – where applicants sentence was cumulative upon previous sentence – where applicants sentence would not commence until he served three years – where co-offender served 12 months in custody prior to sentence – where co-offenders’ sentence was to commence on date of sentence – where both applicant and co-offender eligible for parole after serving a further 16 months – whether sentences imposed result in disparity such as to give rise to a justifiable sense of grievance in the applicant CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to four and a half years cumulative on five year two month sentence – where 16 months pre-sentence taken into account on previous sentence – where total effective sentence was 11 years – where sentencing judge overlooked 16 months pre-sentence custody at second sentence – whether sentence was disproportionate to overall criminality Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Dang[2018] QCA 331, cited R v Gordon (1994) 71 A Crim R 459, considered R v Kruezi[2020] QCA 222, cited R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, considered R v Makary [2019] 2 Qd R 528; [2018] QCA 258, cited R v Mill (1988) 166 CLR 59; [1988] HCA 70, considered R v Symss (2020) 3 QR 336; [2020] QCA 17, considered
COUNSEL:	A Edwards for the applicant C Wallis for the respondent
SOLICITORS:	A W Bale & Son for the applicant Director of Public Prosecutions (Queensland) for the respondent