R v PBH - [2021] QCA 38

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBH [2021] QCA 38

PARTIES:

R
v
PBH
(applicant)

FILE NO/S:

CA No 349 of 2019
SC No 97 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 28 November 2019 (Henry J)

DELIVERED ON:

5 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2021

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDERS:

1. The application for leave to appeal against sentence be granted and the appeal be allowed.

2. The sentence assessed under s 13A(7) of the Penalties and Sentences Act be varied to a term of 13 years’ imprisonment comprised of a base component of six years and a mandatory component of seven years, pursuant to s 161R of the Act.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the applicant pleaded guilty to trafficking dangerous drugs – where the applicant pleaded guilty to the circumstance of aggravation that he was a participant in a criminal organisation within the meaning of s 161P of the Penalties and Sentences Act 1992 (Qld) – where s 161R of the Penalties and Sentence Act 1992 (Qld) was engaged – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the sentencing judge sentenced the applicant in open court and gave an indicative sentence in closed court pursuant to the procedure in s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the indicative sentence must include the “mandatory component” required by s 161R – whether s 161S wholly displaces the operation of s 161R – whether the ultimate sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the applicant pleaded guilty to trafficking dangerous drugs – where the applicant pleaded guilty to the circumstance of aggravation that he was a participant in a criminal organisation within the meaning of s 161P of the Penalties and Sentences Act 1992 (Qld) – where s 161R of the Penalties and Sentence Act 1992 (Qld) was engaged – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the sentencing judge sentenced the applicant in open court and gave an indicative sentence in closed court pursuant to the procedure in s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the sentencing judge allowed for past cooperation in fixing the indicative sentence – whether the court has the power to alter an indicative sentence – whether the ultimate sentence should be altered

Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 9(2)(r), s 13A, s 13B, s 161P, s 161R, s 161S, s 188

R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, considered
R v JAA [2019] 3 Qd R 242; [2018] QCA 365, considered
R v McGrath [2002] 1 Qd R 520; [2001] QCA 131, considered

COUNSEL:

B J Power for…

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 PBH

Details

AGLC: R v PBH [2021] QCA 38
Case: [2021] QCA 38
Decision Date: 5 March 2021

CaseChat Overview and Summary

The applicant in this case pleaded guilty to trafficking dangerous drugs and to the aggravating circumstance that he was a participant in a criminal organisation, as defined in section 161P of the Penalties and Sentences Act 1992 (Qld). The applicant cooperated with authorities and gave an undertaking to cooperate further. The sentencing judge sentenced the applicant in open court, and provided an indicative sentence in closed court as required by section 13A of the Penalties and Sentences Act 1992 (Qld). The applicant appealed against the sentence, arguing that the indicative sentence should have included a "mandatory component" required by section 161R of the Act, that section 161S did not entirely displace the operation of section 161R, and that the ultimate sentence was manifestly excessive.

The court considered whether the sentencing judge allowed for the applicant's past cooperation in fixing the indicative sentence, and whether the court has the power to alter an indicative sentence. The court found that the sentencing judge did not allow for the applicant's past cooperation in fixing the indicative sentence, and that the court has the power to alter an indicative sentence if it is manifestly excessive. The court also found that section 161S does not wholly displace the operation of section 161R, and that the ultimate sentence was manifestly excessive.

Accordingly, the court granted the applicant leave to appeal against sentence, allowed the appeal, and varied the sentence assessed under section 13A(7) of the Penalties and Sentences Act 1992 (Qld) to a term of 13 years’ imprisonment comprised of a base component of six years and a mandatory component of seven years, pursuant to section 161R of the Act.

Orders

Orders of the court

1. The application for leave to appeal against sentence be granted and the appeal be allowed.

2. The sentence assessed under s 13A(7) of the Penalties and Sentences Act be varied to a term of 13 years’ imprisonment comprised of a base component of six years and a mandatory component of seven years, pursuant to s 161R of the Act.

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

Full text does not contain this section.

CITATION:	R v PBH [2021] QCA 38
PARTIES:	R v PBH (applicant)
FILE NO/S:	CA No 349 of 2019 SC No 97 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 28 November 2019 (Henry J)
DELIVERED ON:	5 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2021
JUDGES:	Sofronoff P and McMurdo JA and Boddice J
ORDERS:	1. The application for leave to appeal against sentence be granted and the appeal be allowed. 2. The sentence assessed under s 13A(7) of the *Penalties and Sentences Act* be varied to a term of 13 years’ imprisonment comprised of a base component of six years and a mandatory component of seven years, pursuant to s 161R of the Act.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the applicant pleaded guilty to trafficking dangerous drugs – where the applicant pleaded guilty to the circumstance of aggravation that he was a participant in a criminal organisation within the meaning of s 161P of the Penalties and Sentences Act 1992 (Qld) – where s 161R of the Penalties and Sentence Act 1992 (Qld) was engaged – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the sentencing judge sentenced the applicant in open court and gave an indicative sentence in closed court pursuant to the procedure in s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the indicative sentence must include the “mandatory component” required by s 161R – whether s 161S wholly displaces the operation of s 161R – whether the ultimate sentence was manifestly excessive CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the applicant pleaded guilty to trafficking dangerous drugs – where the applicant pleaded guilty to the circumstance of aggravation that he was a participant in a criminal organisation within the meaning of s 161P of the Penalties and Sentences Act 1992 (Qld) – where s 161R of the Penalties and Sentence Act 1992 (Qld) was engaged – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the sentencing judge sentenced the applicant in open court and gave an indicative sentence in closed court pursuant to the procedure in s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the sentencing judge allowed for past cooperation in fixing the indicative sentence – whether the court has the power to alter an indicative sentence – whether the ultimate sentence should be altered Penalties and Sentences Act 1992 (Qld), s 9(2)(i), s 9(2)(r), s 13A, s 13B, s 161P, s 161R, s 161S, s 188 R v Ianculescu [2000] 2 Qd R 521; [1999] QCA 439, considered R v JAA [2019] 3 Qd R 242; [2018] QCA 365, considered R v McGrath [2002] 1 Qd R 520; [2001] QCA 131, considered
COUNSEL:	B J Power for…