R v Panchal - [2009] QDC 105

[2009] QDC 105

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE HOWELL

Indictment No 269 of 2009
THE QUEEN
v.

MUKESH PANCHAL

Indictment No 1853 of 2008
THE QUEEN
v.

LEANNE MARGARET STARES

Indictment No 3256 of 2008
THE QUEEN
v.

MICHAEL BOGHDADI ASSAD

BRISBANE
..DATE 27/04/2009

RULING

2-1

HIS HONOUR: The accused may remain seated during the ruling.

I have before me three unrelated Commonwealth matters for
argument in relation to how wide is the sentencing discretion
in relation to the time actually served, or, as it is referred
to in the vernacular as the "bottom", for Commonwealth non-
drug matters where the sentence is not in excess of three
years and the accused is released on recognisance? Such is
Commonwealth legislation and it is the Commonwealth sentencing
regime that must be applied and not any of the particular

State sentencing regimes, some of which have not insubstantial	10
differences, perhaps none greater than that between Queensland and New South Wales. The Commonwealth sentencing regime says that the release on recognisance can be after any period not exceeding the head sentence.
The fundamental system in Queensland is that the bottom,
generally speaking, on a plea of guilty can not unusually
result in release after serving about a third of the sentence.
The New South Wales State Legislation has as the not unusual
bottom about two-thirds. When the relevant Commonwealth	20
legislation came into existence with its varying amendments,
the question has to be asked, firstly, what assistance is
provided in the Commonwealth legislation in relation to the range of the bottom, how wide the sentencing discretion may be?
I have referred to the limited assistance, namely, that the release on recognisance can't be longer than after the head sentence. It is eminently desirable that there be uniformity
in sentence for Commonwealth offending in whichever State the	30
offending may occur.
When a State Court of Appeal or a sentencing Judge is considering the sentence, assistance of course may be obtained from interstate appellate authorities. But how does the norm develop? If the bulk of the sentencing in the early matters, particularly before the Court of Appeal is in Queensland, one might anticipate the norm for the bottom would be one-third.
If the sentencing were by judges from New South Wales, judges	40
used to the New South Wales State sentencing regime, would it be in the least unusual that their sentencing would have as a bottom about two-thirds? In the real world what are the
matters that are most likely to be before a State Court of Appeal? An answer of some attraction is that those in the State in which the sentencing regime has the highest bottom.
Would it therefore be unsurprising that the greater numbers before a State Court of Appeal would be in New South Wales? Would those matters then go before a State Court of Appeal
whose members are used to the New South Wales system in which,	50
far from there being anything unusual about…

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 Panchal

Details

AGLC: R v Panchal [2009] QDC 105
Case: [2009] QDC 105
Decision Date: 27/04/2009

CaseChat Overview and Summary

This case before the court involved three unrelated Commonwealth matters, where the legal issue was to determine the sentencing discretion for Commonwealth non-drug matters where the sentence does not exceed three years and the accused is released on recognizance. The court was required to decide whether the Commonwealth sentencing regime applies and if the discretion of the sentencing is as wide as the New South Wales authorities suggest. The reasoning of the court was that the Commonwealth Director of Prosecutions referred to New South Wales authorities, and some interstate Courts considered the sentences by New South Wales Courts and their respective statements of principle. However, the court was bound by the Queensland Court of Appeal's decision in CAK & CAL; ex parte Commonwealth Director of Public Prosecutions, which stated that the norm for non-parole periods is in the range of about 60 to 66 and two-thirds per cent of the head sentence. The court found similarities between the case at hand and CAK and followed the principles enunciated in CAK, taking into account the accused's early pleas of guilty, past cooperation with the authorities, payment of the loss sustained to the Commonwealth, and apparent rehabilitation. The final orders were that the accused's sentence will be heard on the 6th of May 2009, and bail is enlarged.

Orders