R v Morehu-Barlow - [2014] QCA 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v Morehu-Barlow [2014] QCA 4

PARTIES:

R
v
MOREHU-BARLOW, Hohepa Hikairo
(applicant)

FILE NO/S:

CA No 71 of 2013
DC No 404 of 2013
DC No 374 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2013

JUDGES:

Fraser and Gotterson JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application 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 two counts of aggravated fraud (counts 1 and 3), two counts of falsifying a record (counts 2 and 5), one count of uttering (count 4), one count of possessing a dangerous drug (count 6), one count of possessing a relevant substance (count 7) and a summary drug offence – where the applicant was given concurrent sentences of imprisonment of two years for counts 1, 2, 4, 5 and a sentence 12 years imprisonment to be served cumulatively for count 3, resulting in an effective term of 14 years imprisonment – where the sentencing judge fixed a parole eligibility date of 12 December 2016 – where the applicant contends that the sentence was manifestly excessive – where the applicant argued the sentencing judge had insufficient regard to the applicant’s mitigating factors and that the imposition of a cumulative term was not warranted because the only basis for accumulation was the total sum of money involved – whether the sentencing judge erred – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(2)(b), s 9(2)(e), s 9(2)(r), s 155, 156

Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25, cited
R v Daswani (2005) 53 ACSR 675; [2005] QCA 167, considered
R v Gadaloff[1998] QCA 458, considered
R v Heiser & Cook; ex parte A-G (Qld)[1997] QCA 14, applied
R v Hinterdorfer[1997] QCA 199, considered
R v Kawada[2004] QCA 274, considered
R v Lovell[2012] QCA 43, considered
R v O’Carrigan[2013] QCA 327, considered

COUNSEL:

D Shepherd for the applicant
M R Byrne QC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The applicant was given an effective sentence of 14 years imprisonment for a very substantial fraud upon the State. The offences to which the applicant pleaded guilty and of which he was convicted on 19 March 2013, the maximum penalties for those offences, and the sentences imposed for them, are set out in the following table.

Date of Offence

Offence/Maximum Penalty

Sentence

Ct 1: btwn 6 October 2007 – 8 August 2008.

Ct 2: on or about 26 September 2008.

Ct 3: btwn 28 September 2008 – 18 December…

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 Morehu-Barlow

Details

AGLC: R v Morehu-Barlow [2014] QCA 4
Case: [2014] QCA 4
Decision Date: 7 February 2014

CaseChat Overview and Summary

The applicant, Morehu-Barlow, appealed against the sentence imposed by the sentencing judge in the District Court. The applicant pleaded guilty to multiple charges including aggravated fraud, falsifying records, uttering, and drug possession. The court sentenced the applicant to concurrent imprisonment terms for some counts and a cumulative sentence for one count, resulting in an effective term of 14 years imprisonment. The applicant argued that the sentence was manifestly excessive and that the sentencing judge did not sufficiently consider the applicant's mitigating factors. The court was required to determine whether the sentencing judge made an error and whether the sentence was manifestly excessive.

The court examined whether the sentencing judge erred in imposing the sentence and if it was manifestly excessive. It considered the principles of sentencing and the factors relevant to the imposition of the sentence. The court noted that the sentencing judge had considered the totality of the offending, the applicant's previous criminal history, and the need for deterrence and denunciation. The court held that the sentencing judge did not err in imposing the sentence and that it was not manifestly excessive. The court also noted that the applicant's mitigating factors had been considered and appropriately weighed against the seriousness of the offending.

The court found that the applicant had not demonstrated that the sentence was manifestly excessive or that the sentencing judge had erred in imposing it. The court rejected the applicant's argument that the imposition of a cumulative term was not warranted because the only basis for accumulation was the total sum of money involved. The court held that the sentencing judge had appropriately exercised their discretion in imposing the sentence and that there was no basis for interfering with the sentence.

The application for leave to appeal against sentence was refused. The court held that the sentence imposed by the sentencing judge was appropriate and that there was no basis for the court to interfere with the sentence. The court noted that the sentencing judge had considered the relevant factors and had exercised their discretion appropriately. The court also held that the applicant had not demonstrated that the sentence was manifestly excessive or that the sentencing judge had erred in imposing it.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

Full text does not contain this section.

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 Morehu-Barlow [2014] QCA 4
PARTIES:	R v MOREHU-BARLOW, Hohepa Hikairo (applicant)
FILE NO/S:	CA No 71 of 2013 DC No 404 of 2013 DC No 374 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2013
JUDGES:	Fraser and Gotterson JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application 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 two counts of aggravated fraud (counts 1 and 3), two counts of falsifying a record (counts 2 and 5), one count of uttering (count 4), one count of possessing a dangerous drug (count 6), one count of possessing a relevant substance (count 7) and a summary drug offence – where the applicant was given concurrent sentences of imprisonment of two years for counts 1, 2, 4, 5 and a sentence 12 years imprisonment to be served cumulatively for count 3, resulting in an effective term of 14 years imprisonment – where the sentencing judge fixed a parole eligibility date of 12 December 2016 – where the applicant contends that the sentence was manifestly excessive – where the applicant argued the sentencing judge had insufficient regard to the applicant’s mitigating factors and that the imposition of a cumulative term was not warranted because the only basis for accumulation was the total sum of money involved – whether the sentencing judge erred – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 9(2)(b), s 9(2)(e), s 9(2)(r), s 155, 156 Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25, cited R v Daswani (2005) 53 ACSR 675; [2005] QCA 167, considered R v Gadaloff[1998] QCA 458, considered R v Heiser & Cook; ex parte A-G (Qld)[1997] QCA 14, applied R v Hinterdorfer[1997] QCA 199, considered R v Kawada[2004] QCA 274, considered R v Lovell[2012] QCA 43, considered R v O’Carrigan[2013] QCA 327, considered
COUNSEL:	D Shepherd for the applicant M R Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent