SUPREME COURT OF QUEENSLAND
CITATION:
R v Nunn [2019] QCA 100
PARTIES:
R
v
NUNN, Daniel Glen
(applicant)FILE NO/S:
CA No 225 of 2018
SC No 1214 of 2018DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 23 August 2018 (Ryan J)
DELIVERED ON:
Date of Orders: 7 May 2019
Date of Publication of Reasons: 28 May 2019DELIVERED AT:
Brisbane
HEARING DATE:
7 May 2019
JUDGES:
Sofronoff P and Fraser JA and Mullins J
ORDERS:
Date of Orders: 7 May 2019
1. Application granted.
2. Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was sentenced to 10 years imprisonment for trafficking in the dangerous drug methylamphetamine – where the primary judge articulated the “principle” that mature offenders who have pleaded guilty to trafficking in schedule 1 drugs can expect a sentence of at least 10 years imprisonment except in extraordinary circumstances – whether the sentencing judge erred in holding that a sentence of at least 10 years imprisonment was required unless extraordinary circumstances justified a more lenient sentence
Penalties and Sentences Act 1992 (Qld), s 9(2)
R v Abbott[2017] QCA 57, cited
R v Castner [2018] QCA 265, applied
R v Corbett[2018] QCA 341, cited
R v Feakes [2009] QCA 376, explained
R v Johnson[2014] QCA 79, cited
R v McGinniss [2015] QCA 34, cited
R v Strutt [2017] QCA 195, cited
R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22, distinguishedCOUNSEL:
B J Power for the applicant
C N Marco for the respondentSOLICITORS:
Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Fraser JA and the orders his Honour proposes.
FRASER JA: The applicant pleaded guilty and was convicted of nine offences. He was sentenced to 10 years imprisonment for carrying on the business of trafficking in the dangerous drug methylamphetamine. He was given shorter concurrent terms of imprisonment for three counts of supplying the dangerous drug cocaine, two counts of possessing a dangerous drug, and one count of failing to answer a question before a CCC hearing. Convictions were recorded and he was not further punished for possession of a thing used in connection with trafficking and possession of property obtained from trafficking.
The applicant applied for leave to appeal against sentence upon the ground that the sentencing judge erred by holding that there was a sentencing principle that required extraordinary circumstances before a sentence below 10 years imprisonment could be imposed in a case such as the present. After hearing argument upon the application the Court granted leave to appeal and ordered that the appeal be dismissed. These are my reasons for joining in those orders.
The circumstances of the offences and the applicant’s personal circumstances
The applicant trafficked in methylamphetamine between 16 September…
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- AGLC
- R v Nunn [2019] QCA 100
- Case
- [2019] QCA 100
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether the sentencing judge had indeed erred in applying a principle that effectively set a fixed range of sentences for a class of offences, which would amount to an improper fetter on the sentencing discretion. The Court considered whether the sentencing judge had merely used the cited cases as a guide or had imposed a rigid principle that predetermined the sentence range for a category of offences. This involved examining the sentencing judge's reasoning and whether the sentence imposed was a result of a balanced consideration of all relevant factors.
The Court found that while the sentencing judge had initially conducted an orthodox sentencing process, she subsequently articulated a principle that established a fixed range of sentences for the category of offences in question. This approach, which set a predetermined range of sentences with fixed boundaries, amounted to an improper fetter on the sentencing discretion. The Court emphasised that sentencing judges must balance the various factors in each case and arrive at a just sentence through an instinctive synthesis of those factors. The Court held that the sentencing judge had erred by applying a rigid principle instead of conducting a balanced consideration of all relevant factors in the particular case.
The Court granted the applicant's application for leave to appeal against the sentence. The appeal was subsequently dismissed, and the original sentence was affirmed. The Court's decision highlighted the importance of adhering to the principle of instinctive synthesis in sentencing, which requires a balanced consideration of all relevant factors to arrive at a just sentence for each individual case.
Orders
Orders of the court
Date of Orders: 7 May 2019
1. Application granted.
2. Appeal dismissed.
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
The applicant argued that the sentencing judge wrongly fettered the sentencing discretion by treating Feakes and the subsequent decisions referring to it with approval as requiring in comparable cases a sentence of at least 10 years imprisonment unless extraordinary circumstances justified a more lenient sentence. The respondent accepted that those decisions did not justify any fetter upon the sentencing discretion of the kind described by the applicant. The respondent argued that the sentencing judge did not treat the sentencing discretion as fettered in the way contended for by the applicant. Rather, the sentencing judge merely provided her own reasons for imposing a sentence that was consistent with McMurdo P’s analysis. This construction of the sentencing remarks was submitted to derive support from the fact that the sentencing judge thoroughly considered the circumstances material to the appropriate sentence, the sentence imposed upon Dalton, and the sentencing authorities mentioned in the parties’ submissions. The respondent also reminded the Court that “[i]t is not appropriate to parse and analyse judgments given on an ex tempore basis by judges… who have a considerable caseload.”[5][5]R v Hooper; Ex parte Cth DPP [2008] QCA 308 at [23], citing Commissioner of Taxation v Baffsky (2001) 164 FLR 375 at 386 [49]; R v Stamatov [2018] 2 Qd R 1 at 29 [97].Consideration of the application for leave to appeal The sentencing judge initially embarked upon an orthodox sentencing process, including by summarising the circumstances of the offences and the offender and analysing cited sentencing decisions. But the sentencing judge then articulated the “principle” that mature offenders who have pleaded guilty to trafficking in schedule 1 drugs on a large scale can expect a sentence of at least 10 years imprisonment except in extraordinary circumstances. It is implicit in this part of the sentencing remarks that the applicant’s offence fell within the terms of that suggested principle. That was the first step in this part of the sentencing judge’s analysis. The second step was the finding that the circumstances were not extraordinary. Notwithstanding the sentencing judge’s own analysis of the circumstances and past sentences, this stepped analysis apparently informed the immediately following determination of the sentence of 10 years imprisonment for the trafficking offence. Section 9(2) of the Penalties and Sentences Act 1992 (Qld) obliges a court sentencing an offender to have regard to specified factors, which comprehend some circumstances which may be treated as aggravating factors and some circumstances which may be treated as mitigating factors. There are statutory provisions which operate according to whether or not the circumstances are exceptional or extraordinary,[6] but none apply in this case. The sentencing judge’s obligation when imposing sentence in a case to which s 9(2) applies is “to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances.”[7] The required sentencing method, known as “instinctive synthesis”, requires the sentencing court “to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.”[8] It was entirely appropriate for the sentencing judge to use the past sentences described and analysed by McMurdo P in Feakes in the way described in [10] of these reasons, for guidance as a yard stick in determining the sentence which was just for the particular circumstances of the subject offence and offender. But the sentencing judge erred in that part of the reasoning in which her Honour started from a pre-determined range of sentences with fixed boundaries for a generally described kind of offence and offender.[9][6]See for example s 9(4) of the Penalties and Sentencing Act 1992 (Qld).[7]Elias v The Queen (2013) 248 CLR 483 at 494 [27].[8]Wong v The Queen (2001) 207 CLR 584 at 611 [75]; Markarian v The Queen (2005) 228 CLR 357 at 373 – 375 [37] – [39].[9]See Wong v The Queen (2001) 207 CLR 584 at 611 – 613 [75] – [78]; Markarian v The Queen (2005) 228 CLR 357 at 372 – 375 [30] – [39]; Hili v The Queen (2010) 242 CLR 520 at 536 – 537 [53] – [55]; Barbaro v The Queen (2014) CLR 58 at 72 [34], 74 [40] – [41]; Director of Public Prosecutions of the State of Victoria v Dalgliesh (a pseudonym) (2017) 262 CLR 428 at 434 [5] – [6], 445 [52], 453 – 454 [82] – [83].