R v Raine - [2017] QCA 204

SUPREME COURT OF QUEENSLAND

CITATION:

R v Raine [2017] QCA 204

PARTIES:

R
v
RAINE, Morgan Daniel
(applicant)

FILE NO/S:

CA No 263 of 2016
SC No 110 of 2014
SC No 846 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 12 September 2016 (Ann Lyons J)

DELIVERED ON:

15 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2017

JUDGES:

Sofronoff P and Morrison JA and Atkinson J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced to a head sentence of five years and three months’ imprisonment on one count of trafficking in heroin and methylamphetamine – where the sentencing judge accepted that s 5(2) of the Drugs Misuse Act 1986 applied to the head sentence so that the applicant was required to serve not less than 80 per cent of the sentence before being eligible for parole – where defence counsel at sentence accepted the proposed range for the head sentence and that the 80 per cent rule applied – where the applicant submitted that the sentencing judge erred by failing to consider if the effect of s 5(2) could be mitigated by reducing the head sentence – whether the head sentence should be reduced to mitigate the effect of s 5(2) – whether, if the applicant fell to be re-sentenced, he would be sentenced under the legislation as it is now or under the legislation which applied at the time he committed the offence

Corrective Services Act 2006 (Qld), s 182A
Criminal Code 1899 (Qld), s 668E
Drugs Misuse Act 1986 (Qld), s 5
Drugs Misuse Act Amendment Act 1989 (Qld), s 5
Drugs Misuse Act Amendment Act 1990 (Qld), s 5(1)(a), s 5(1)(b)
Justice and Other Legislation Amendment Act 2013 (Qld), s 490D
Penalties and Sentences Act 1992 (Qld), s 160A, s 160C, s 160E, s 161Q, s 180
Safe Night Out Legislation Amendment Act 2014 (Qld)
Serious and Organised Crime Legislation Amendment Act 2016 (Qld)

R v Clark [2016] QCA 173, cited
R v Cornale [1993] 2 Qd R 294; [1993] QCA 145, cited
R v Hughes [2017] QCA 178, cited
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Neilson [2014] QCA 221, cited
R v Pascoe[1997] QCA 284, cited
R v Trimble[2004] QCA 464, cited
R v Watson[2017] QCA 82, cited

COUNSEL:

J Briggs for the applicant
M Whitbread for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Atkinson J and with the order her Honour proposes.
MORRISON JA: I have read the reasons of Atkinson J and agree with those reasons and the order her Honour proposes.
ATKINSON J: On 12 September 2016, the…

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 Raine

Details

AGLC: R v Raine [2017] QCA 204
Case: [2017] QCA 204
Decision Date: 15 September 2017

CaseChat Overview and Summary

The case of R v Raine involved the applicant appealing against his sentence. The applicant was sentenced to five years and three months’ imprisonment for trafficking in heroin and methylamphetamine. The sentencing judge applied section 5(2) of the Drugs Misuse Act 1986, which required the applicant to serve 80 per cent of his sentence before becoming eligible for parole. The applicant argued that the sentencing judge erred by not considering whether the effect of section 5(2) could be mitigated by reducing the head sentence. The appeal was against the sentence and grounds for interference with the sentence.

The legal issue before the court was whether the sentencing judge erred by not considering if the effect of section 5(2) could be mitigated by reducing the head sentence. The court needed to determine if the applicant should be re-sentenced to mitigate the effect of section 5(2) and whether, if re-sentenced, the applicant should be sentenced under the legislation as it was at the time of the offence or under the current legislation. The court considered the various iterations of the Drugs Misuse Act and accompanying legislation to determine the applicable law.

The court found no error in the sentencing judge’s consideration of section 5(2) of the Drugs Misuse Act 1986. The court noted that the sentencing judge had explicitly observed that she could not do anything about the requirement to serve 80 per cent of the sentence, but there was no doubt that she had taken this into account in imposing the head sentence. The court found that the sentencing judge was cognisant of the need to ameliorate the head sentence to take account of the fact that the applicant would be required to spend 80 per cent of that sentence in actual custody. Therefore, the court found no error of the type alleged in the amended ground of appeal. The court also noted that if the applicant fell to be re-sentenced, he would be sentenced under the legislation as it applied at the time he committed the offence.

ORDERS:
The application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Finally, it was submitted that if the application were allowed, the applicant should be re-sentenced to a head sentence of six years and 10 months’ imprisonment with a parole eligibility date of 16 July 2017.Consideration The applicant did not ask for a lower head sentence to be imposed if he were to be successful on appeal. Indeed he submitted that a higher head sentence of five years and 10 months’ imprisonment should now be imposed by this court. The reason why no decrease in the head sentence was sought was no doubt because the sentence imposed was at the lower end of the permissible range for offences of this type. Imposing a sentence at the lower end of the range in this case showed that the learned sentencing judge took into account the fact that the applicant was required to serve 80 per cent of his sentence before being eligible for parole. Her Honour explicitly observed that she was unable to do anything about requiring him to serve 80 per cent of the sentence but there seems little doubt that her Honour took that into account in the head sentence imposed on the second count of trafficking, that is on indictment No. 846 of 2015. The requirement for him to serve 80 per cent of his sentence was explicitly taken into account when the sentence was reopened to reduce the sentence that he was otherwise required to serve. It appears that the learned sentencing judge was very cognisant of the need to ameliorate the head sentence to take account of the fact that the applicant would be required to spend 80 per cent of that sentence in actual custody. Accordingly, I can find no error of the type alleged in the amended ground of appeal. Since it was fully covered in the submissions on this application. I should go on to consider whether, if there had been such an error and the applicant fell to be re-sentenced by this court, he would be re-sentenced under the legislation as it is now or under the legislation which applied at the time he committed the offence in indictment 846 of 2015, that is between 20 September 2013 and 13 January 2014. This requires a consideration of the various iterations of the Drugs Misuse Act and accompanying legislation.The applicable law The Drugs Misuse Act was first enacted in 1986. Section 5 made trafficking in dangerous drugs a crime. It provided:“5 Trafficking in dangerous drugs.A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.Penalty:(a)If the dangerous drug is a thing specified in the First Schedule, imprisonment with hard labour for life which cannot be mitigated or varied by a court.(b)If the dangerous drug is a thing specified in the Second Schedule, imprisonment with hard labour for life.” This section has seen a number of amendments. In 1989 a new subsection was added by s 5 of the Drugs Misuse Act Amendment Act 1989 (the 1989 Amendment Act). The new subsection 2 provided:“Where a person is charged with the commission of a crime defined in this section no further step in the proceedings shall be taken in relation to that crime (other than remanding the person in custody or on bail) until the consent of the Crown Law Officer has been obtained.”

CITATION:	R v Raine [2017] QCA 204
PARTIES:	R v RAINE, Morgan Daniel (applicant)
FILE NO/S:	CA No 263 of 2016 SC No 110 of 2014 SC No 846 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 12 September 2016 (Ann Lyons J)
DELIVERED ON:	15 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	11 July 2017
JUDGES:	Sofronoff P and Morrison JA and Atkinson J
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced to a head sentence of five years and three months’ imprisonment on one count of trafficking in heroin and methylamphetamine – where the sentencing judge accepted that s 5(2) of the Drugs Misuse Act 1986 applied to the head sentence so that the applicant was required to serve not less than 80 per cent of the sentence before being eligible for parole – where defence counsel at sentence accepted the proposed range for the head sentence and that the 80 per cent rule applied – where the applicant submitted that the sentencing judge erred by failing to consider if the effect of s 5(2) could be mitigated by reducing the head sentence – whether the head sentence should be reduced to mitigate the effect of s 5(2) – whether, if the applicant fell to be re-sentenced, he would be sentenced under the legislation as it is now or under the legislation which applied at the time he committed the offence Corrective Services Act 2006 (Qld), s 182A Criminal Code 1899 (Qld), s 668E Drugs Misuse Act 1986 (Qld), s 5 Drugs Misuse Act Amendment Act 1989 (Qld), s 5 Drugs Misuse Act Amendment Act 1990 (Qld), s 5(1)(a), s 5(1)(b) Justice and Other Legislation Amendment Act 2013 (Qld), s 490D Penalties and Sentences Act 1992 (Qld), s 160A, s 160C, s 160E, s 161Q, s 180 Safe Night Out Legislation Amendment Act 2014 (Qld) Serious and Organised Crime Legislation Amendment Act 2016 (Qld) R v Clark [2016] QCA 173, cited R v Cornale [1993] 2 Qd R 294; [1993] QCA 145, cited R v Hughes [2017] QCA 178, cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Neilson [2014] QCA 221, cited R v Pascoe[1997] QCA 284, cited R v Trimble[2004] QCA 464, cited R v Watson[2017] QCA 82, cited
COUNSEL:	J Briggs for the applicant M Whitbread for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent