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R v Ritzau

R v Ritzau

Case [2017] QCA 17 24 February 2017

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Ritzau [2017] QCA 17

PARTIES:

R
v
RITZAU, Orlin Cavell
(applicant)

FILE NO/S:

CA No 264 of 2016
SC No 61 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 8 September 2016

DELIVERED ON:

24 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2017

JUDGES:

Gotterson and Morrison JJA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to trafficking in MDMA – where the applicant was sentenced to imprisonment for two years and six months, suspended after seven months with an operational period of two years and six months – where the applicant did not challenge the head sentence, but contended that the period of imprisonment to be served was excessive – where the contentions focused on the applicant’s age, the nature of the trafficking, and that a wholly suspended sentence has been imposed in similar cases – where the respondent drew distinctions between the applicant and similar cases – where the applicant was found not to have engaged in specific rehabilitation and only desisted once arrested – where appropriate consideration was made of the applicant’s good character and future prospects – whether the sentence was manifestly excessive

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Casagrande[2009] QCA 1, distinguished
R v Dowel; Ex parte Attorney-General (Qld)[2013] QCA 8, distinguished
R v Engellenner[2012] QCA 6, distinguished
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited
R v Nabhan; R v Kostopoulos[2007] QCA 266, cited
R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, cited
R v Pham (2015) 256 CLR 550; (2015) 90 ALJR 13; [2015] HCA 39, cited
R v SBK[2009] QCA 107, considered
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

M Johnson for the applicant
P J McCarthy for the respondent

SOLICITORS:

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

GOTTERSON JA: I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
MORRISON JA: On 8 September 2016, Mr Ritzau pleaded guilty to one count of trafficking in MDMA,[1] and one count of possession of MDMA. The trafficking took place over 18 days, between 13 May 2015 and 1 June 2015.
[1]Otherwise known as 3, 4-Methylenedioxymethamphetamine.
He was sentenced to imprisonment 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 Ritzau

Details

AGLC: R v Ritzau [2017] QCA 17
Case: [2017] QCA 17
Decision Date: 24 February 2017

CaseChat Overview and Summary

In the matter of R v Ritzau, the applicant appealed against his sentence for trafficking in MDMA, arguing that the period of imprisonment to be served was excessive. The applicant had pleaded guilty and was sentenced to imprisonment for two years and six months, suspended after seven months, with an operational period of two years and six months. The applicant did not contest the head sentence but focused on the period of imprisonment to be served, citing his age, the nature of the trafficking, and the imposition of wholly suspended sentences in similar cases. The respondent highlighted distinctions between the applicant's case and those cited, noting the applicant's lack of specific rehabilitation efforts and his desistance only after arrest. The court considered the applicant's good character and future prospects but concluded that the sentence was not manifestly excessive.

The legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The applicant contended that the period of imprisonment to be served was disproportionate, particularly given his age, the nature of the offence, and the imposition of wholly suspended sentences in similar cases. The respondent argued that the applicant's lack of specific rehabilitation efforts and his desistance only upon arrest justified the sentence. The court had to determine if the sentence was manifestly excessive by weighing the factors presented by both parties, including the applicant's age, the nature of the offence, and the appropriateness of the sentence compared to similar cases.

The court examined the arguments presented by both the applicant and the respondent, noting the applicant's age and the nature of the offence. It considered the imposition of wholly suspended sentences in similar cases, but also highlighted the applicant's lack of specific rehabilitation efforts and his desistance only upon arrest. The court found that appropriate consideration had been given to the applicant's good character and future prospects. It concluded that the sentence was not manifestly excessive, given the distinctions between the applicant's case and the cases cited by the applicant. Consequently, the application for leave to appeal against the sentence was refused.

The court's final order was that the application for leave to appeal against the sentence was refused. The court found that the sentence was not manifestly excessive, considering the factors presented by both parties, including the applicant's age, the nature of the offence, and the appropriateness of the sentence compared to similar cases. The distinctions between the applicant's case and the cited cases, along with the applicant's lack of specific rehabilitation efforts, supported the sentence imposed.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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.

Citations

AGLC Citation

R v Ritzau [2017] QCA 17

Most Recent Citation

R v Stamatov [2017] QCA 158

Cases citing this decision · 7 of 7 shown

The Queen v Phan
[2021] QCA 86 Para 5

…] and R v Ritzau .[4] Wholesalers of large amounts of dangerous drugs are in a completely different category. [2][2018] 2 Qd R 1. [3][2013] QCA 8. [4][2017] QCA 17.…
R v Uqd
[2021] QSC 50 Para 29

…ediate release on parole or immediate suspension is appropriate ‘only in exceptional circumstances’, to use the phrase in Dowel at [16].” [16][2017] QCA 17.…
R v Morrison
[2020] QCA 187 Para 11

…ney-General (Qld) [2013] QCA 8; and see the judgment of McMurdo P in R v Feakes [2009] QCA 376 at [33]; and the judgment of Morrison JA in R v Ritzau [2017] QCA 17 at [36]; and the judgment of Applegarth J in R v Stamatov [2018] 2 Qd R 1 and R v Nunn [2019] QCA 100 at [10]-[12].…
R v Peterson
[2019] QCA 43

…t of four years imprisonment accords with comparable sentencing decisions to which the respondent referred: see R v Scott [2006] QCA 76, R v Ritzau [2017] QCA 17 and R v Jobsz [2013] QCA 5.…
R v Trajkov
[2017] QCA 292

…on to Scott and Mullins , referred to below, the Respondent also relied upon R v Blumke [2015] QCA 264, R v Thompson [2016] QCA 196, and R v Ritzau [2017] QCA 17. There are inevitably distinctions between each of those cases and the present one. However, they support the conclusion a three year head sentence sus…
R v Roach
[2017] QCA 240 Para 1

…he level of sentencing appropriate for the type of offence although those decisions were not binding.[31] [27][2015] QCA 264. [28][2016] QCA 132. [29][2017] QCA 17. [30]T1-22/30-40. [31]T1-31-10-14.…
R v Stamatov
[2017] QCA 158 Para 6

…licant who appears on the present application submitted that counsel at the hearing thereby led the learned sentencing judge into error. [3][2017] QCA 17.…

View all 7 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Neto
[2016] QCA 217 Para 12

…ere must have been some misapplication of principle (citation omitted).” [31] R Pham [2015] HCA 39; (2015) 90 ALJR 13 at [28]; see also R v Neeto [2016] QCA 217, at [28].…
R v Pham
[2015] HCA 39

…ed R v Nabhan; R v Kostopoulos [2007] QCA 266, cited R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, cited R v Pham (2015) 256 CLR 550; (2015) 90 ALJR 13; [2015] HCA 39, cited R v SBK [2009] QCA 107, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 , cited COUNSEL: M Johnson for the applicant P J McC…
R v Dowel; Ex parte
[2013] QCA 8 Para 29

…case, but Muir JA[18] had cause to review other decisions including R v Casagrande [19] and R v Engellenner [20]. Having done so his Honour said: [17][2013] QCA 8. [18]With whom Fraser JA and Dalton J concurred. [19][2009] QCA 1. [20][2012] QCA 6. “The considerations which prompted the leniency of the Court in…
R v Engellenner
[2012] QCA 6 Para 29

…19] and R v Engellenner [20]. Having done so his Honour said: [17][2013] QCA 8. [18]With whom Fraser JA and Dalton J concurred. [19][2009] QCA 1. [20][2012] QCA 6. “The considerations which prompted the leniency of the Court in Casagrande and Engellenner were, in some respects, different from those present here…
R v SBK
[2009] QCA 107 Para 24

…er transaction, but increased the quantity when he saw the opportunity for enhanced profits. His weekly profit was in the range of $250 to $1,000. [8][2009] QCA 107.…
R v Casagrande
[2009] QCA 1 Para 29

…g R v Casagrande [19] and R v Engellenner [20]. Having done so his Honour said: [17][2013] QCA 8. [18]With whom Fraser JA and Dalton J concurred. [19][2009] QCA 1. [20][2012] QCA 6. “The considerations which prompted the leniency of the Court in Casagrande and Engellenner were, in some respects, different from…
R v McAway
[2008] QCA 401 Para 26

…em will be far outweighed by the penalties imposed by the courts. On a cost-benefit analysis, the business of trafficking is not viable.”[14] [13][2008] QCA 401 (de Jersey CJ and Muir JA concurring). [14] SBK at [19].…
R v. Nabhan ; R v Kostopoulos
[2007] QCA 266 Para 25

…eneurs that risks of the enterprise do not justify the rewards.”[12] [9]Per McMurdo P at [2]. [10]With whom Keane JA concurred. [11][2007] QCA 266, at [43]. [12] SBK at [18].…
Markarian v The Queen
[2005] HCA 25

…9] HCA 46, cited Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Casagrande [2009] QCA 1, distinguished R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8, distinguished R v Engellenner [2012] QCA 6, distinguished R v Gladkowski…
Wong v The Queen
[2001] HCA 64

…LR 550; (2015) 90 ALJR 13; [2015] HCA 39, cited R v SBK [2009] QCA 107, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 , cited COUNSEL: M Johnson for the applicant P J McCarthy for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for th…
R v Gladkowski
[2000] QCA 352 Para 5

…as at the level of substantial discounts of at least one-third, referred to in R v Gladkowski .[25] [24](1999) 198 CLR 111, per Hayne J at 155. [25][2000] QCA 352 at [7].…
AB v The Queen
[1999] HCA 46

…good character and future prospects – whether the sentence was manifestly excessive AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Casagrande [2009] QCA 1, distinguished R v D…
Everett v the Queen
[1994] HCA 49

…as manifestly excessive AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Casagrande [2009] QCA 1, distinguished R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8, distingui…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Ritzau [2017] QCA 17
PARTIES:	R v RITZAU, Orlin Cavell (applicant)
FILE NO/S:	CA No 264 of 2016 SC No 61 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 8 September 2016
DELIVERED ON:	24 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2017
JUDGES:	Gotterson and Morrison JJA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to trafficking in MDMA – where the applicant was sentenced to imprisonment for two years and six months, suspended after seven months with an operational period of two years and six months – where the applicant did not challenge the head sentence, but contended that the period of imprisonment to be served was excessive – where the contentions focused on the applicant’s age, the nature of the trafficking, and that a wholly suspended sentence has been imposed in similar cases – where the respondent drew distinctions between the applicant and similar cases – where the applicant was found not to have engaged in specific rehabilitation and only desisted once arrested – where appropriate consideration was made of the applicant’s good character and future prospects – whether the sentence was manifestly excessive AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, cited Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Casagrande[2009] QCA 1, distinguished R v Dowel; Ex parte Attorney-General (Qld)[2013] QCA 8, distinguished R v Engellenner[2012] QCA 6, distinguished R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited R v Nabhan; R v Kostopoulos[2007] QCA 266, cited R v McAway (2008) 191 A Crim R 475; [2008] QCA 401, cited R v Pham (2015) 256 CLR 550; (2015) 90 ALJR 13; [2015] HCA 39, cited R v SBK[2009] QCA 107, considered Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
COUNSEL:	M Johnson for the applicant P J McCarthy for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent