R v Rae

Case [2016] QCA 228 25 May 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Rae [2016] QCA 228

PARTIES:

R
v
RAE, Stephen Craig Edward
(applicant)

FILE NO/S:

CA No 245 of 2015
SC No 206 of 2015
SC No 465 of 2015
SC No 733 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 21 September 2015

DELIVERED ON:

Orders delivered ex tempore 25 May 2016
Reasons delivered 13 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 25 May 2016:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   The sentences imposed at first instance are set aside and instead the following concurrent sentences are imposed:

a.   On count 1 on the three count indictment the appellant is sentenced to five years imprisonment suspended as of today with an operational period of five years.

b.   On count 2 on that indictment the appellant is sentenced to six months imprisonment.

c.   On count 3 on that indictment the appellant is sentenced to nine months imprisonment and two years probation on the usual terms and conditions with the additional conditions that:

              i.   he abstain from the use of illegal drugs; and

            ii.   that he participate in drug testing and substance abuse counselling as required by an authorised Corrective Services Officer.

d.   On the 1 count indictment the appellant is sentenced to two years imprisonment fully suspended with an operational period of three years.

e.   In respect of the breach of the suspended sentence this Court is satisfied that in all the circumstances it would be unjust to activate the whole of that suspended sentence imposed on 27 October 2011 and instead orders that the appellant serve nine months of that sentence.

f.    37 days of pre-sentence custody between 12 November and 18 December 2013 is declared as time served under the sentences.

4.   The court will publish its reasons for these orders later.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to one count of trafficking methylamphetamine, two counts of supplying cannabis and one count of extortion – where the offending activated a suspended sentence of 12 months imprisonment – where the applicant was sentenced to six years imprisonment for the trafficking and lesser concurrent terms of imprisonment for the other drug charges and the extortion – where the primary judge ordered the remainder of the suspended sentence also be served concurrently – where a related offender on the drug charges was sentenced to five and a half years imprisonment – where the applicant was trading at a lower level than the related offender – where the applicant provided significant co-operation to police and gave evidence…

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 Rae

Details

AGLC: R v Rae [2016] QCA 228
Case: [2016] QCA 228
Decision Date: 25 May 2016

CaseChat Overview and Summary

In the case of R v Rae, the appellant was convicted on multiple counts, including trafficking methylamphetamine, supplying cannabis, extortion, and breaching a suspended sentence. The appellant appealed against the sentence imposed by the primary judge, arguing that there should be parity in sentencing between the appellant, a related offender on the drug charges, and the principal offender on the extortion charge. The appellant also claimed that the primary judge did not give sufficient weight to the appellant's significant cooperation with the police.

The primary judge had sentenced the appellant to six years imprisonment for the trafficking charge, with lesser concurrent terms for the other drug charges and the extortion. The judge had also ordered the remainder of the suspended sentence to be served concurrently. The related offender on the drug charges was sentenced to five and a half years imprisonment, while the principal offender on the extortion charge received a wholly suspended sentence of two years. The appellant argued that the disparity in sentences was unjust, particularly given that the appellant had provided significant cooperation to the police and had traded at a lower level than the related offender.

The court considered the arguments presented by the appellant and the primary judge's reasoning. The court noted that the appellant's cooperation and sustained rehabilitation efforts should be taken into account when determining the appropriate sentence. However, the court found that the primary judge had appropriately balanced the competing considerations of the appellant's criminal conduct, the need for deterrence, and the appellant's cooperation with the authorities. The court also noted that the sentencing judge had considered the totality of the appellant's criminality and had imposed concurrent sentences to reflect the appellant's cooperation on the extortion charge.

The court ultimately allowed the appeal and set aside the sentences imposed at first instance. Instead, the court imposed concurrent sentences, including a suspended sentence for the trafficking charge, lesser sentences for the other drug charges and the extortion, and a suspended sentence for the breach of the suspended sentence. The court ordered that 37 days of pre-sentence custody be declared as time served under the sentences. The court found that the appellant's significant cooperation with the police and the mitigating circumstances warranted a more lenient sentence than that imposed by the primary judge. The court also noted that the sentences imposed on the related offender and the principal offender were not relevant to the appellant's sentence and that the appellant's sentence should be determined on its own merits.

Orders

Orders of the court

Delivered ex tempore on 25 May 2016:

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. The sentences imposed at first instance are set aside and instead the following concurrent sentences are imposed:

a. On count 1 on the three count indictment the appellant is sentenced to five years imprisonment suspended as of today with an operational period of five years.

b. On count 2 on that indictment the appellant is sentenced to six months imprisonment.

c. On count 3 on that indictment the appellant is sentenced to nine months imprisonment and two years probation on the usual terms and conditions with the additional conditions that:

i. he abstain from the use of illegal drugs; and

ii. that he participate in drug testing and substance abuse counselling as required by an authorised Corrective Services Officer.

d. On the 1 count indictment the appellant is sentenced to two years imprisonment fully suspended with an operational period of three years.

e. In respect of the breach of the suspended sentence this Court is satisfied that in all the circumstances it would be unjust to activate the whole of that suspended sentence imposed on 27 October 2011 and instead orders that the appellant serve nine months of that sentence.

f. 37 days of pre-sentence custody between 12 November and 18 December 2013 is declared as time served under the sentences.

4. The court will publish its reasons for these orders later.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sentencing judge raised his concern that, if a concurrent sentence were imposed to encompass the trafficking and the extortion as well as the activated breach of the suspended sentence to reflect the applicant’s co-operation on the extortion, then it would be “double-dipping” to further reduce the trafficking sentence. Defence counsel responded that, in light of the co-operation and the applicant’s two years of sustained rehabilitation, a global head sentence of five years imprisonment with parole eligibility after as early as 12 months could appropriately reflect the competing considerations.The sentencing judgment The judge noted the applicant’s plea of guilty to all counts and that the guilty plea to the extortion was particularly early. The applicant had genuinely co-operated with the authorities and was remorseful. His offending was serious and involved not only drug activities but an unrelated charge of extortion, all of which were committed during the operational period of a suspended sentence. His Honour set out the circumstances of the offending, noting that the applicant was involved in illegal activities concerning two drugs in circumstances which suggested he was heavily involved in the drug industry between May and October 2013. The extortion offence involved a significant threat of actual violence and actual detriment. The judge noted the applicant’s criminal history which extended over two pages, and that he had not previously been ordered to serve an actual period of imprisonment. This would be a significant impost but was the only appropriate penalty. His Honour referred to the references, drug screens and the psychologist’s report, all of which suggested the applicant was on the path to rehabilitation. His Honour again referred to the applicant’s significant co-operation with police on the extortion charge and that this extended to providing a witness statement and giving evidence in court against a co-offender who subsequently pleaded guilty. That co-operation significantly strengthened the prosecution case. The judge identified that courts sentence offenders who co-operate with the authorities in such a significant way by reflecting this co-operation in the sentence. His Honour referred to the comparable cases cited, the totality principle and the need to sentence the applicant having regard to his overall criminality. The judge determined that a five year sentence would not properly reflect the totality of the applicant’s criminality. The competing factors, his Honour considered, could best be tempered by a significant global head sentence for the trafficking offence. The extortion offence was a significant example of the charge and the appropriate head sentence was three years imprisonment. The most appropriate way in which to reflect the applicant’s significant co-operation with the criminal justice system in respect of the extortion offence was to impose concurrent sentences for all offending including the previously suspended sentence. His Honour imposed six years imprisonment on the trafficking offence with lesser concurrent sentences on all remaining counts including the extortion, and also ordered that the previously suspended sentence of 12 months imprisonment be served concurrently. To reflect the mitigating circumstances, his Honour set parole eligibility after 18 months.The applicant’s submissions

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Rae [2016] QCA 228

Most Recent Citation

R v Hunt [2016] QCA 297

Cases citing this decision · 1 of 1 shown

R v Hunt
[2016] QCA 297 Para 2

…ly excessive and that he has a justifiable sense of grievance when comparing his sentence to those of Baradel and particularly Rae. [1] R v Rae [2016] QCA 228. Antecedents…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

R v Baradel
[2016] QCA 114 Para 13

…(22 months) to reflect the guilty plea. Baradel’s application for leave to appeal against sentence was refused on 4 May 2016.[2] [2] R v Baradel [2016] QCA 114. The circumstances of the extortion…
R v HBK
[2014] QCA 100 Para 3

…o four years imprisonment suspended after six to nine months was appropriate. [13][1994] QCA 393. [14][1995] QCA 332. [15][2000] QCA 316, [16]. [16][2014] QCA 100.…
R v Briggs
[2012] QCA 291 Para 23

…[8] R v Coleman [9] and R v Cooney; ex-parte Attorney-General (Qld )[10] as comparable. [5][1999] QCA 236. [6][2012] QCA 211. [7][2012] QCA 166. [8][2012] QCA 291. [9][2006] QCA 442. [10][2008] QCA 414. Defence counsel’s submissions…
R v Taouk
[2012] QCA 211 Para 23

…the prosecutor relied on R v Briggs ,[8] R v Coleman [9] and R v Cooney; ex-parte Attorney-General (Qld )[10] as comparable. [5][1999] QCA 236. [6][2012] QCA 211. [7][2012] QCA 166. [8][2012] QCA 291. [9][2006] QCA 442. [10][2008] QCA 414. Defence counsel’s submissions…
R v Girardo & Michaelides
[2012] QCA 166 Para 23

…ied on R v Briggs ,[8] R v Coleman [9] and R v Cooney; ex-parte Attorney-General (Qld )[10] as comparable. [5][1999] QCA 236. [6][2012] QCA 211. [7][2012] QCA 166. [8][2012] QCA 291. [9][2006] QCA 442. [10][2008] QCA 414. Defence counsel’s submissions…
Hili v The Queen
[2010] HCA 45

…fender on the drug charges and the principal offender on the extortion charges Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited R v Amery [1999] QCA 236, cited R v Baradel [2016] QCA 114, related R v Briggs [2012] QCA 291, cited R v Cifuentes [2006] QCA 566, cited R v Coleman [2006] QCA 442, cited R v C…
R v Short
[2010] QCA 206 Para 13

…he respondent submits, made cumulative sentences for his three lots of offending open.[21] [21] R v Hoad (1989) 42 A Crim R 312, 315; R v Short [2010] QCA 206, [32] – [33].…
R v Cooney; Ex parte Attorney-General (Qld)
[2008] QCA 414 Para 23

…parte Attorney-General (Qld )[10] as comparable. [5][1999] QCA 236. [6][2012] QCA 211. [7][2012] QCA 166. [8][2012] QCA 291. [9][2006] QCA 442. [10][2008] QCA 414. Defence counsel’s submissions…
R v Cifuentes
[2006] QCA 566 Para 2

…n charge, would be an effective global sentence of between five and six years imprisonment with parole eligibility after 20 to 24 months. [12][2006] QCA 566.…
R v Coleman
[2006] QCA 442 Para 23

…and R v Cooney; ex-parte Attorney-General (Qld )[10] as comparable. [5][1999] QCA 236. [6][2012] QCA 211. [7][2012] QCA 166. [8][2012] QCA 291. [9][2006] QCA 442. [10][2008] QCA 414. Defence counsel’s submissions…
R v Gladkowski
[2000] QCA 352 Para 12

…e should be served concurrently. [19] Penalties and Sentences Act , s 160F. [20]See R v Salameh (1991) 55 A Crim R 384, 388; R v Gladkowski [2000] QCA 352, [7]; Webber [2000] QCA 316, [16]. The respondent’s contentions…
R v Webber
[2000] QCA 316 Para 3

…between three and a half to four years imprisonment suspended after six to nine months was appropriate. [13][1994] QCA 393. [14][1995] QCA 332. [15][2000] QCA 316, [16]. [16][2014] QCA 100.…
R v Amery
[1999] QCA 236 Para 23

…rafficking offence, the prosecutor relied on R v Briggs ,[8] R v Coleman [9] and R v Cooney; ex-parte Attorney-General (Qld )[10] as comparable. [5][1999] QCA 236. [6][2012] QCA 211. [7][2012] QCA 166. [8][2012] QCA 291. [9][2006] QCA 442. [10][2008] QCA 414. Defence counsel’s submissions…
R v D & Attorney-General of Queensland
[1995] QCA 332 Para 3

…ll his offending of between three and a half to four years imprisonment suspended after six to nine months was appropriate. [13][1994] QCA 393. [14][1995] QCA 332. [15][2000] QCA 316, [16]. [16][2014] QCA 100.…
R v Thompson
[1994] QCA 393 Para 3

…entence to reflect all his offending of between three and a half to four years imprisonment suspended after six to nine months was appropriate. [13][1994] QCA 393. [14][1995] QCA 332. [15][2000] QCA 316, [16]. [16][2014] QCA 100.…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 22)

CITATION:	R v Rae [2016] QCA 228
PARTIES:	R v RAE, Stephen Craig Edward (applicant)
FILE NO/S:	CA No 245 of 2015 SC No 206 of 2015 SC No 465 of 2015 SC No 733 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 21 September 2015
DELIVERED ON:	Orders delivered ex tempore 25 May 2016 Reasons delivered 13 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	25 May 2016
JUDGES:	Margaret McMurdo P and Morrison JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 25 May 2016: 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The sentences imposed at first instance are set aside and instead the following concurrent sentences are imposed: a. On count 1 on the three count indictment the appellant is sentenced to five years imprisonment suspended as of today with an operational period of five years. b. On count 2 on that indictment the appellant is sentenced to six months imprisonment. c. On count 3 on that indictment the appellant is sentenced to nine months imprisonment and two years probation on the usual terms and conditions with the additional conditions that: i. he abstain from the use of illegal drugs; and ii. that he participate in drug testing and substance abuse counselling as required by an authorised Corrective Services Officer. d. On the 1 count indictment the appellant is sentenced to two years imprisonment fully suspended with an operational period of three years. e. In respect of the breach of the suspended sentence this Court is satisfied that in all the circumstances it would be unjust to activate the whole of that suspended sentence imposed on 27 October 2011 and instead orders that the appellant serve nine months of that sentence. f. 37 days of pre-sentence custody between 12 November and 18 December 2013 is declared as time served under the sentences. 4. The court will publish its reasons for these orders later.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to one count of trafficking methylamphetamine, two counts of supplying cannabis and one count of extortion – where the offending activated a suspended sentence of 12 months imprisonment – where the applicant was sentenced to six years imprisonment for the trafficking and lesser concurrent terms of imprisonment for the other drug charges and the extortion – where the primary judge ordered the remainder of the suspended sentence also be served concurrently – where a related offender on the drug charges was sentenced to five and a half years imprisonment – where the applicant was trading at a lower level than the related offender – where the applicant provided significant co-operation to police and gave evidence…