R v MRB [No 2] - [2024] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION:

R v MRB [No 2] [2024] QCA 65

PARTIES:

R
v
MRB
(applicant)

FILE NO/S:

CA No 182 of 2023
SC No 1476 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 14 September 2023 (Applegarth J)

DELIVERED ON:

26 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2024

JUDGES:

Dalton and Boddice JJA and Burns J

ORDER:

The application for leave to appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DELAY – where the applicant was found guilty by a jury of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) – where the sentencing judge imposed a period of 16 years imprisonment and set a non-parole period at nine years and eight months – where the applicant lied to police – where there was a 14 month delay after the applicant’s encrypted messages to his criminal associates were accessed before the applicant was charged – where the applicant was of good character in the five years between offending and sentencing – whether the trial judge failed to take into account delay between offending and sentencing in sentencing the applicant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG ASSUMPTION OF FACT – where the sentencing judge considered the sentence of one of the applicant’s criminal associates under principles of parity – where part of the criminal associate’s sentence took place in closed court – where the sentencing judge made a factual assumption that the criminal associate had co-operated in a way which required a closed court hearing – whether the trial judge made a wrong assumption of fact as to the basis upon which the criminal associate was sentenced – whether, in any case, leave to appeal was warranted

Criminal Code Act 1995 (Cth), s 307.1(1)

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered
R v L, Ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, considered
Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114, considered

COUNSEL:

R Pontello SC for the applicant
M F Bonasia for the respondent

SOLICITORS:

Benjamin Leonardo Solicitors for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

DALTON JA: This is an application for leave to appeal against sentence. The sentencing judge presided at the trial, at the end of which the applicant was found guilty by a jury of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code Act (Cth).
The applicant was a tertiary‑educated, professional engineer with no criminal convictions. He had a friend who was apparently associated with a…

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 MRB [No 2]

Details

AGLC: R v MRB [No 2] [2024] QCA 65
Case: [2024] QCA 65
Decision Date: 26 April 2024

CaseChat Overview and Summary

In the matter of R v MRB [No 2], the applicant appealed against his sentence of 16 years imprisonment with a non-parole period of nine years and eight months, imposed by the sentencing judge. The applicant had been found guilty by a jury of importing a commercial quantity of a border controlled drug in contravention of s 307.1(1) of the Criminal Code Act 1995 (Cth). The applicant was also found to have lied to police and there was a delay of 14 months between when his encrypted messages to his criminal associates were accessed and when he was charged. The applicant had been of good character in the five years between offending and sentencing.

The court was required to decide whether the trial judge failed to take into account the delay between offending and sentencing in sentencing the applicant. The court was also required to decide whether the trial judge acted on a wrong assumption of fact by considering the sentence of one of the applicant's criminal associates under principles of parity, where part of the criminal associate's sentence took place in closed court. The court had to determine whether the sentencing judge made a wrong assumption of fact as to the basis upon which the criminal associate was sentenced and whether, in any case, leave to appeal was warranted.

The court found that the delay between offending and sentencing did not warrant interference with the sentence. The court also found that the sentencing judge's assumption that the criminal associate had co-operated in a way which required a closed court hearing was not a wrong assumption of fact. The court found that the sentencing judge had not erred in considering the sentence of the criminal associate under principles of parity. The court found that there was no basis for the applicant to appeal against his sentence and dismissed the application for leave to appeal against sentence.

The court did not make any further orders.

Orders

Orders of the court

The application for leave to appeal against sentence be dismissed.

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 MRB [No 2] [2024] QCA 65
PARTIES:	R v MRB (applicant)
FILE NO/S:	CA No 182 of 2023 SC No 1476 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 14 September 2023 (Applegarth J)
DELIVERED ON:	26 April 2024
DELIVERED AT:	Brisbane
HEARING DATE:	6 March 2024
JUDGES:	Dalton and Boddice JJA and Burns J
ORDER:	The application for leave to appeal against sentence be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – DELAY – where the applicant was found guilty by a jury of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) – where the sentencing judge imposed a period of 16 years imprisonment and set a non-parole period at nine years and eight months – where the applicant lied to police – where there was a 14 month delay after the applicant’s encrypted messages to his criminal associates were accessed before the applicant was charged – where the applicant was of good character in the five years between offending and sentencing – whether the trial judge failed to take into account delay between offending and sentencing in sentencing the applicant CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG ASSUMPTION OF FACT – where the sentencing judge considered the sentence of one of the applicant’s criminal associates under principles of parity – where part of the criminal associate’s sentence took place in closed court – where the sentencing judge made a factual assumption that the criminal associate had co-operated in a way which required a closed court hearing – whether the trial judge made a wrong assumption of fact as to the basis upon which the criminal associate was sentenced – whether, in any case, leave to appeal was warranted Criminal Code Act 1995 (Cth), s 307.1(1) Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered R v L, Ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, considered Scook v The Queen (2008) 185 A Crim R 164; [2008] WASCA 114, considered
COUNSEL:	R Pontello SC for the applicant M F Bonasia for the respondent
SOLICITORS:	Benjamin Leonardo Solicitors for the applicant Director of Public Prosecutions (Commonwealth) for the respondent