R v Peirano

Case [2020] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v Peirano [2020] QCA 100

PARTIES:

R
v
PEIRANO, Zachary Scott
(applicant)

FILE NO/S:

CA No 278 of 2019
SC No 47 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay – Date of Sentence: 9 October 2019 (Crow J)

DELIVERED ON:

12 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2020

JUDGES:

Sofronoff P and Boddice and Williams JJ

ORDER:

Leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of possessing a dangerous drug in excess of two grams and three summary charges, being one of contravening an order about information necessary to access information stored electronically, and two breach of bail conditions – where the applicant was sentenced to six years’ imprisonment for the count of possessing a dangerous drug in excess of two grams – where a parole eligibility date was fixed after serving 20 months – where the applicant was not further punished in respect of each of the summary charges – where the applicant seeks leave to appeal against sentence on the ground that the sentence was manifestly excessive – where the applicant transported methylamphetamine from Brisbane to Mackay, knowing the drugs were intended for a commercial purpose, at the request of his brother-in-law – where the applicant was in possession of the drugs when a search warrant was executed by Police – where the applicant had no criminal history – where the applicant had been treated for depression and anxiety for some years – whether the sentence was manifestly excessive

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Dean[1999] QCA 378, cited
R v Duong (2015) 255 A Crim R 57; [2015] QCA 170, cited
R v Dwyer [2008] QCA 117, cited
R v Gaerlan [2014] QCA 145, cited
R v Hieu Van Huynh [2003] QCA 371, cited
R v Truong [1997] QCA 49, cited

COUNSEL:

A J Kimmins for the applicant
T L Corsbie for the respondent

SOLICITORS:

Gatenby Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with Boddice J.

  2. BODDICE J:  On 9 October 2019, the applicant pleaded guilty to one count of possessing a dangerous drug in excess of two grams and three summary charges, being one of contravening an order and two of breach of bail conditions.

  3. The applicant was sentenced to six years’ imprisonment for the count of possessing a dangerous drug in excess of two grams.  A parole eligibility date was fixed at 7 June 2021.  The applicant was convicted and not further punished in respect of each of the summary charges.

  4. The applicant seeks leave to appeal…

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Details
AGLC
R v Peirano [2020] QCA 100
Case
[2020] QCA 100
Decision Date

CaseChat Overview and Summary

The case of R v Peirano involves an appeal against a sentence imposed by the court. The applicant, who had no prior criminal history, pleaded guilty to possessing a dangerous drug in excess of two grams and three summary charges. He was sentenced to six years' imprisonment for the drug possession charge, with parole eligibility set after 20 months. The applicant sought leave to appeal on the basis that the sentence was manifestly excessive. The case raises issues concerning the appropriateness of the sentence in light of the applicant's cooperation with the administration of justice, his lack of prior criminal history, his expressed remorse, his pre-existing medical conditions, and his circumstances of financial distress at the time of the offence. The court was required to determine whether the sentence imposed was manifestly excessive.

The court considered the applicant's involvement in the distribution of a large scale drug into the Mackay community, which involved serious criminality. The Crown submitted that the applicant's criminality warranted imprisonment in the range of eight to nine years, with parole eligibility set at the one third mark. The court compared the applicant's sentence with that of another individual, Walker, who was sentenced to four and a half years' imprisonment for trafficking in methylamphetamine. The court noted that Walker's sentence would have been moderated to allow for the fact that he was to receive a cumulative period of imprisonment for other offending. The court concluded that the sentence imposed on the applicant represented a sound exercise of the sentencing discretion, and that it was neither unreasonable nor plainly unjust. The court found that there was no misapplication of sentencing principles and no breach of the parity principle. Therefore, the sentence imposed was not manifestly excessive.

The court refused the applicant leave to appeal against the sentence. The court found that the sentence imposed was within a sound exercise of the sentencing discretion in accordance with comparable authority, and that there was no manifest excess. The court agreed with the reasons and order proposed by another judge, and ordered that leave to appeal against sentence be refused. The court emphasised that there is no single correct sentence to be found in the exercise of a sentencing discretion, and that an approach which seeks to grade the criminality involved by a close comparison of aggravating and mitigating factors is to be deprecated. The court concluded that the applicant's sentence was appropriate in light of the seriousness of the offence and the circumstances of the case.

Orders

Orders of the court

Leave to appeal against sentence be refused.

Background

Background to the litigation

The applicant seeks leave to appeal against that sentence of imprisonment. The ground of appeal, should leave be given, is that the sentence was manifestly excessive.Background The applicant was born on 29 October 1985. He was aged 32 years at the time of the offending. He was aged 33 years at the date of sentence. The applicant had no prior criminal history.Offences The offence of possession of a dangerous drug in excess of two grams was contained in an indictment containing two counts. Count 1 charged Mark Geoffrey King with the offence of trafficking in a dangerous drug. Count 2 charged King and the applicant with the count of possessing a dangerous drug in excess of two grams. The applicant’s sentence hearing was conducted on the basis of an agreed statement of facts. That statement of facts contained details of the alleged offending of King, as well as the offending of the applicant. In summary, the Crown alleged that in the course of an operation targeting the supply of dangerous drugs in the Mackay area, of which one of the principal targets was King, the applicant came to their attention. The Crown alleged that King had engaged in trafficking of the dangerous drug methylamphetamine over a three month period, supplying high street level to wholesale quantities of the drug, primarily to other dealers. King travelled to Mackay on at least five occasions to distribute drugs during the trafficking period. On 20 January 2018, King made arrangements for a quantity of methylamphetamine to be delivered to the applicant, who then drove those drugs to Mackay, arriving on 21 January 2018. Police executed a search warrant on the house of one of King’s associates, Walker, shortly after the arrival of the applicant. The applicant was present at that residence, as were King and Walker. A search of the premises located a clip seal bag containing a crystal substance and a package wrapped in cling wrap. Inside that package were nine clip seal bags of a crystal substance. In total, 186.189 grams of pure methylamphetamine in a substance weighing 276.1 grams was located. It was accepted at sentence that that possession was for a commercial purpose. The applicant was sentenced on the basis he was liable for the possession of the drugs as he had acted as courier, transporting the methylamphetamine from Brisbane to Mackay, knowing the drugs were intended for a commercial purpose. He was also in physical possession of the drugs at the time of the search. The Crown was unable to state the extent to which he benefited, although it was alleged he had previously been paid $2,500 by King. Walker was prosecuted separately for offences of trafficking and possession of dangerous drugs in excess of two grams. He had a criminal history. He was sentenced to a head sentence of four and a half years’ imprisonment for those drug offences.Sentence hearing The Crown submitted that the applicant’s involvement in the distribution of a large scale drug into the Mackay community involved serious criminality, calling for general deterrence. Whilst the applicant had mitigating factors, including his early plea of guilty, evidencing cooperation with the administration of justice and a lack of any criminal history, his criminality warranted imprisonment in the range of eight to nine years, with parole eligibility set at the one third mark.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Second, Walker was sentenced to four and a half years’ imprisonment on the trafficking count in circumstances where he, at the same time, was sentenced to a further 12 months’ imprisonment to be served cumulatively in respect of another offence. Plainly, his sentence on the count of trafficking would have been moderated to allow for the fact that he was to receive a cumulative period of imprisonment for other offending.Conclusions The sentence imposed on the applicant represented a sound exercise of the sentencing discretion. It was neither unreasonable nor plainly unjust. There was no misapplication of sentencing principles. There was no breach of the parity principle. The sentence imposed was not manifestly excessive.Orders I would order that leave to appeal against sentence be refused. WILLIAMS J: I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.

Ratio Decidendi

Legal Principle Established

The respondent further submits that the sentence did not breach the principle of parity. Whilst Walker was also sentenced for an offence of trafficking in methylamphetamine, his trafficking was based on assisting King by booking motels, providing accommodation and, on occasions, by supplying drugs. Further, Walker was only 23 years of age at the time of the offending, with a criminal history consistent with his drug addiction. Walker’s head sentence of four and a half years’ imprisonment must also be viewed in the context of Walker having been sentenced to a total period of five and a half years’ imprisonment, as a 12 month cumulative term of imprisonment was imposed for an offence of escaping lawful custody. The imposition of a cumulative period of imprisonment would have involved some moderation of the sentence otherwise to be imposed on the trafficking count.Consideration In order to succeed on a ground of manifest excess, absent specific error, it is necessary for an applicant to establish that the sentence imposed was unreasonable or plainly unjust, or that the sentence imposed was so different from comparable authorities that it warranted a conclusion that the imposition of the sentence involved a misapplication of sentencing principles. In undertaking an assessment of whether manifest excess is established, it is necessary for a court, on appeal, to recognise that there is no single correct sentence to be found in the exercise of a sentencing discretion.[2] As was observed in R v Dwyer[3]:“An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process …”[2]Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; Barbaro v The Queen (2014) 253 CLR 58.[3][2008] QCA 117 at [37]. In the present case, whilst the applicant’s offending involved one occasion of possession of the dangerous drug methylamphetamine, in circumstances where he had transported that drug, at the request of his brother-in-law, as part of his brother-in-law’s drug trafficking operation, his offending was properly described as serious. The applicant had transported over 180 grams of pure methylamphetamine from Brisbane to Mackay, knowing it was to be used for a commercial purpose. Although the applicant had many mitigating features in his favour, including his cooperation with the administration of justice by his pleas of guilty; his lack of prior criminal history; his expressed remorse; his pre-existing medical conditions; and his circumstances of financial distress when he committed the offence, a consideration of comparable authorities supports a conclusion that a sentence of six years’ imprisonment for such serious drug offending was within a sound exercise of the sentencing discretion in accordance with comparable authority.