SUPREME COURT OF QUEENSLAND
CITATION:
R v Ostrowski; Ex parte Director of Public Prosecutions (Cth) [2018] QCA 62
PARTIES:
R
v
OSTROWSKI, Kyle Paul
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)FILE NO/S:
CA No 60 of 2017
SC No 1414 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by Director of Public Prosecutions (Cth)
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 3 February 2017 (Daubney J)
DELIVERED ON:
6 April 2018
DELIVERED AT:
Brisbane
HEARING DATE:
13 September 2017
JUDGES:
Fraser and Morrison JJA and Mullins J
ORDERS:
1. Allow the appeal.
2. Set aside so much of the order made in the Supreme Court Trial Division on 3 February 2017 fixing a non-parole period of two years and six months.
3. Substitute a non-parole period of four years.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was sentenced to eight years imprisonment with a non-parole period of two years and six months for the offence of importing a commercial quantity of a border controlled drug – where the respondent pleaded guilty – where a package containing 3,148.1 grams pure methamphetamine was sent to the respondent on a friend’s behalf – where the respondent provided his name and an address for the package to be delivered – where the respondent thought the package was to contain cocaine – where the respondent had a minor criminal history and was driven by his drug addiction – where the respondent showed favourable prospects of rehabilitation – where the appellant contended the non-parole period did not adequately reflect the objective seriousness of the offending – whether the sentence was manifestly inadequate
Crimes Act 1914 (Cth), s 16A(1)
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
R v Agboti (2014) 246 A Crim R 72; [2014] QCA 280, considered
R v Onyebuchi; Ex parte Director Public Prosecutions (Cth)[2016] QCA 143, distinguished
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Pham, Tran & Dang; Ex parte Director of Public Prosecutions (Cth)[2017] QCA 46, cited
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, cited
Webber v The Queen [2014] NSWCCA 111, distinguished
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, consideredCOUNSEL:
L Crowley for the appellant
J J Allen QC for the respondentSOLICITORS:
Director of Public Prosecutions (Commonwealth) for the appellant
Legal Aid Queensland for the respondent
FRASER JA: The respondent was sentenced to eight years imprisonment, with a non-parole period of two years and six months, for the offence of importing a commercial quantity of a border controlled drug. The Commonwealth Director of Public Prosecutions has appealed against that sentence upon the ground that it is manifestly inadequate.
The respondent pleaded guilty and was sentenced with reference to an agreed…
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- AGLC
- R v Ostrowski; Ex parte [2018] QCA 62
- Case
- [2018] QCA 62
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the sentence was manifestly inadequate, considering the principles set out in the Crimes Act 1914 (Cth). The respondent relied on several cases to argue that their prospects of rehabilitation were more favourable than those in comparable cases, and that their state of knowledge about the quantity of the drug imported was less culpable. The court also considered the principle that an appellate court should only intervene in a sentence if there was a misapplication of principle, rather than merely a disagreement about the appropriate sentence. The court examined the maximum sentence for the importation of a commercial quantity of methamphetamine and the objective seriousness of the respondent's conduct in facilitating the importation of a large quantity of the drug.
The court allowed the appeal and set aside the non-parole period of two years and six months, substituting it with a non-parole period of four years. The court found that the original non-parole period did not adequately reflect the objective seriousness of the offending, and that the respondent's prospects of rehabilitation were favourable enough to warrant a longer non-parole period. The court also considered the respondent's state of knowledge about the quantity of the drug imported, and found that while it was a mitigating factor, it did not outweigh the seriousness of the offence. The court emphasised the importance of the non-parole period in reflecting the necessary deterrent and punitive effects of sentences for federal offences.
The final orders of the court were to allow the appeal, set aside the original non-parole period of two years and six months, and substitute a non-parole period of four years. The respondent's sentence of eight years imprisonment remained unchanged, but the non-parole period was increased to reflect the objective seriousness of the offending and the respondent's prospects of rehabilitation.
Orders
Orders of the court
1. Allow the appeal.
2. Set aside so much of the order made in the Supreme Court Trial Division on 3 February 2017 fixing a non-parole period of two years and six months.
3. Substitute a non-parole period of four years.
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
The respondent relied upon Webber and Onyebuchi as comparable sentencing decisions and submitted that in each case the offender’s efforts at and prospects of rehabilitation were much less favourable than the respondent’s. The respondent did not dispute the sentencing principles for which the appellant contended but referred to decisions concerning the significance of an offender’s state of knowledge about the quantity of the drug imported: R v Pham, Tran & Dang; Ex parte Director of Public Prosecutions (Cth)[4] and Agboti.[5] The respondent relied upon the sentencing judge’s finding that the respondent did not know the quantity of drug that was being imported and submitted that for this reason his culpability was not as high as in Webber and Onyebuchi. The appellant also emphasised the limitation upon intervention in a sentence by an appellate court that there must have been some misapplication of principle, rather than merely a disagreement about the appropriate sentence: Lowndes v The Queen,[6] Wong v The Queen[7] and R v Pham.[8][4][2017] QCA 46.[5](2014) 246 A Crim R 72.[6](1999) 195 CLR 665 at 671-672 [15].[7](2001) 207 CLR 584 at 605 [58].[8](2015) 256 CLR 550 at 559 [28].Consideration Section 16A(1) of the Crimes Act 1914 (Cth) requires that in determining a sentence for a federal offence, the sentencing court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. In a case, such as this, where it is necessary that considerations of deterrence and punishment be reflected in the sentence, “the necessary deterrent and punitive effects of sentences … must be reflected both in the head sentence and also in any provision for earlier release from custody”.[9] The non-parole period is to be the sentencing judge’s estimation of “the period before the expiration of which release of that offender would … be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify”.[10][9]Hili v The Queen (2010) 242 CLR 520 at 533 [41] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), quoting from R v Ruha [2011] 2 Qd R 456 at 470 [45].[10]Bugmy v The Queen (1990) 169 CLR 525 at 538 (Dawson, Toohey and Gaudron JJ) quoting from Morgan and Morgan v The Queen (1980) 7 A Crim R 146 at 154 (Jenkinson J). The maximum sentence for the importation of a commercial quantity (750 grams or more) of the border controlled drug methamphetamine is life imprisonment. As the sentencing judge observed, by any objective measure the importation of more than three kilograms of pure methamphetamine is a very large importation and the respondent’s conduct in facilitating the importation of that very large importation of methamphetamine was bad by any objective standard. In Wong,[11] Gaudron, Gummow and Hayne JJ held that the amount of narcotic involved can have significance, but not chief importance, in fixing the sentence to be imposed on an offender. Their Honours referred to the fact that it is not uncommon for those involved in importing narcotics to know nothing about what they are dealing, apart from the fact that it is a quantity of narcotic and observed that “there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved”.[12] In that respect the sentencing judge concluded that the respondent did not know the quantity that was being imported, that was the risk the respondent took by becoming engaged in the activity, and the respondent was ready, willing and able to undertake an essential role in importation of a large quantity of methamphetamine. Those conclusions were justified in circumstances in which the respondent told police officers that Moore asked him if he was prepared to receive at the address given by the respondent a package containing cocaine, the respondent gave Moore his full name and the address to where the package could be sent, and the respondent expected that the respondent would, in return, be given money and drugs for his personal use by way of recompense.[11]Wong v The Queen (2001) 207 CLR 584 at 609 [67].[12]Wong v The Queen (2001) 207 CLR 584 at 609 [68]-[69]. Those passages were quoted with approval by French CJ, Keane and Nettle JJ in R v Pham (2015) 256 CLR 550 at 562 [35].