R v Onyebuchi; Ex parte

Case [2016] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 143

PARTIES:

R
v
ONYEBUCHI, Emmanuel Onyekachi
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 286 of 2015
SC No 405 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:


Supreme Court at Brisbane – Date of Sentence: 26 October 2015

DELIVERED ON:

7 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2016

JUDGES:

Gotterson JA and Applegarth and Flanagan JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed.

2.   Order that the sentence imposed below be set aside.

3.   In relation to Count 1, the respondent is convicted and sentenced to imprisonment for a period of nine years.

4.   Pursuant to section 19AB of the Crimes Act 1914 (Cth), the Court fixes a non-parole period of four and a half years.

5.   The sentence of imprisonment is to commence on 26 October 2015.

6.   Pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld) the Court declares that time spent in pre-sentence custody from 8 June 2014 to 25 October 2015 (505) days, be imprisonment already served under the sentence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADQUATE – where the Crown appeals against sentence – where the respondent pleaded guilty to one offence of importing a commercial quantity of a border controlled drug – where the respondent was sentenced to seven years’ imprisonment with a non-parole period fixed at three and a half years – where, at sentencing, the Crown provided a table of comparative cases – where the appellant argues that the respondent’s offending was objectively and subjectively more serious than the comparative cases relied upon by the learned trial judge – whether the sentence imposed was manifestly inadequate

R v Agboti[2014] QCA 280, considered
R v Harris[2009] QCA 370, considered
R v Nikolovska (2010) 209 A Crim R 218; [2010] NSWCCA 169, considered
R v Pham (2015) 90 ALJR 13; [2015] HCA 39, applied
R v Todoroski (2010) 267 ALR 543; [2010] NSWCCA 75, considered
R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, considered
R v UE[2016] QCA 58, considered
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, considered

COUNSEL:

G R Rice QC for the appellant
P J Callaghan SC for the respondent

SOLICITORS:

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

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

  2. APPLEGARTH J:  I agree with the reasons of Flanagan J and with the orders proposed by his Honour.

  3. FLANAGAN J: On 26…

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Details
AGLC
R v Onyebuchi; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 143
Case
[2016] QCA 143
Decision Date

CaseChat Overview and Summary

The appeal in this matter was brought by the Crown against the sentence imposed on the respondent, Onyebuchi, who had pleaded guilty to importing a commercial quantity of a border controlled drug. The respondent was sentenced to seven years’ imprisonment, with a non-parole period of three and a half years. The Crown argued that the sentence was manifestly inadequate given the seriousness of the offence and the comparative cases provided at sentencing. The appeal was heard by the court, which had to decide whether the sentence was indeed manifestly inadequate and whether the appeal should be allowed.

The primary legal issue before the court was whether the sentence imposed on the respondent was manifestly inadequate. The Crown contended that the sentence did not adequately reflect the seriousness of the offence, given the comparative cases presented at the time of sentencing. The court had to consider the principles of sentencing and the objective and subjective gravity of the respondent’s offending in relation to the comparative cases. The Crown’s argument was that the sentence should be increased to more accurately reflect the severity of the crime and to align with the sentencing outcomes in similar cases.

In determining the appeal, the court found that the sentence imposed was indeed manifestly inadequate. The court considered the principles of sentencing and the comparative cases provided by the Crown, and concluded that the sentence did not adequately reflect the seriousness of the respondent’s offending. The court set aside the original sentence and imposed a new sentence of nine years’ imprisonment, with a non-parole period of four and a half years. The court also declared that the time spent in pre-sentence custody should be counted as time already served under the new sentence.

The appeal was allowed, and the sentence imposed by the lower court was set aside. The respondent was convicted and sentenced to imprisonment for a period of nine years, with a non-parole period of four and a half years. The sentence was to commence on 26 October 2015, and the time spent in pre-sentence custody was to be counted as time already served. The court’s decision was based on the finding that the original sentence was manifestly inadequate and did not reflect the gravity of the respondent’s offending.

Orders

Orders of the court

1. The appeal is allowed.

2. Order that the sentence imposed below be set aside.

3. In relation to Count 1, the respondent is convicted and sentenced to imprisonment for a period of nine years.

4. Pursuant to section 19AB of the Crimes Act 1914 (Cth), the Court fixes a non-parole period of four and a half years.

5. The sentence of imprisonment is to commence on 26 October 2015.

6. Pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld) the Court declares that time spent in pre-sentence custody from 8 June 2014 to 25 October 2015 (505) days, be imprisonment already served under the sentence.

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

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