R v Munoz

[2012] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v Munoz [2012] QCA 269

PARTIES:

R
v
MUNOZ, Andres Marcello
(applicant)

FILE NO/S:

CA No 61 of 2012
SC No 17 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2012

JUDGES:

Margaret McMurdo P, Gotterson JA 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 was convicted on his own pleas of guilty of one count of trafficking in cocaine and one count of possession of cannabis sativa – where the sentencing judge ordered the applicant to serve seven years imprisonment on the count of trafficking and twelve months imprisonment to be served concurrently on the count of possession – where the sentencing judge did not set a parole eligibility date – whether the sentence was manifestly excessive in all the circumstances

Corrective Services Act 2006 (Qld)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, referred
R v Feakes[2009] QCA 376, referred
R v Frame[2009] QCA 9, referred
R v Hutchinson [2010] QCA 22, referred
R v Kashton [2005] QCA 70, considered
R v Matauaina[2011] QCA 344, referred

COUNSEL:

M J Byrne QC for the appellant
B J Merrin for the respondent

SOLICITORS:

Bernard Bradley and Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P: I agree with McMeekin J's reasons for refusing the application for leave to appeal against sentence.

1. GOTTERSON JA: I agree with the order proposed by McMeekin J and with the reasons given by his Honour. 

1. McMEEKIN J: The applicant applies for leave to appeal his sentence contending that it was manifestly excessive.

1. On 31 January 2012, following pleas of guilty entered on the first day of trial nearly a year before, the applicant was sentenced to seven years imprisonment in respect of trafficking in cocaine over a period of about five months and 12 months imprisonment for the possession of cannabis sativa for commercial purposes, the sentences to be served concurrently.  No parole eligibility date was set and so the applicant will be eligible for parole after serving half of his sentence.[1]

   [1]Section 184(2) Corrective Services Act 2006 (Qld).

1. No complaint is made about the head sentence imposed.  The application and proposed appeal is directed to the refusal of the learned sentencing judge to set a parole eligibility date.  The submission made in the written outline was that the failure to set a parole eligibility date did not have regard to:

(a)        the sentences imposed upon co-offenders;

(b)        the mitigating features of the case.

1. The complaint about parity is no longer pursued.

1. Absent some specific error this Court…