R v Russell - [2021] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v Russell [2021] QCA 35

PARTIES:

R
v
RUSSELL, Brian Benjamin
(applicant)

FILE NO/S:

CA No 135 of 2020
DC No 511 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 16 June 2020 (Rafter SC DCJ)

DELIVERED ON:

5 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2021

JUDGES:

Fraser and McMurdo JJA and Boddice J

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was released from custody too early in relation to a previous sentence due to administrative error in not-extending parole release date – where the applicant was not at fault for the administrative error – whether the principle of totality misapplied – whether the principle of totality merits regard to actual time spent in custody due to error or time that should have been spent in custody due to the previous sentence – whether the sentence was manifestly excessive in all the circumstances

Crimes Act 1914 (Cth), s 16A(1)
Criminal Code Act 1995 (Cth), s 134.2

R v Anderson[2012] QCA 264, cited
R v Buckman[2016] QCA 176, cited
R v Coutts[2016] QCA 206, cited
R v Etheridge[2016] QCA 241, cited
R v Gordon (1994) 71 A Crim R 459, cited
R v Host (2015) 248 A Crim R 352; [2015] WASCA 23, cited
R v Ireland; Ex parte Attorney General (Qld)[2019] QCA 58, cited
R v Massey[2015] QCA 254, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, distinguished
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Russell [2019] 1 Qd R 181; [2018] QCA 96, cited
Reg v Stringfellow, Unreported; Court of Criminal Appeal (Q); 8 November 1984, distinguished
R v Todd [1982] 2 NSWLR 517, distinguished
Wheeler v The Queen [No 2] [2010] WASCA 105, cited

COUNSEL:

J P Benjamin for the applicant
B J Power for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

FRASER JA: The applicant pleaded guilty to 40 offences committed between 1 November 2006 and 19 August 2010. On 16 June 2020 he was sentenced to concurrent terms of imprisonment of three years and six months for 37 counts of obtaining a financial advantage by deception and three years for three counts of attempting to obtain a financial advantage by deception, with a non-parole period of 18 months fixed under the Crimes Act 1914 (Cth).
The maximum penalty for each offence is ten years’ imprisonment.[1] The sentence was imposed for very serious offending. During more than three and a half years between November 2006 and August 2010 the applicant lodged 40 Business Activity Statements (“BAS”) for four companies he controlled, knowing that the BAS nominated…

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 Russell

Details

AGLC: R v Russell [2021] QCA 35
Case: [2021] QCA 35
Decision Date: 5 March 2021

CaseChat Overview and Summary

The applicant, Russell, sought to appeal against his sentence, arguing that it was manifestly excessive in the circumstances. The crux of the case was whether the principle of totality should take into account the actual time spent in custody due to an administrative error or the time that should have been spent in custody based on the previous sentence. The application was heard in the High Court of Australia.

The primary legal issue before the court was whether the principle of totality should consider the actual time spent in custody, which was less than the intended period due to an administrative error, or the intended custodial period. Additionally, the court had to determine whether Russell's release from custody too early due to this error warranted interference with the sentence. Another issue was whether the principle of totality was misapplied in the circumstances, and if so, whether the sentence was manifestly excessive.

The court considered the principle of totality, which is used to ensure that the cumulative effect of overlapping sentences does not result in excessive punishment. In this case, the court noted that the administrative error was not attributable to Russell and therefore should not be considered in the calculation of his sentence. The court held that the principle of totality should be applied based on the intended custodial period, not the actual time served due to the error. As a result, the court found that the sentence was not manifestly excessive and dismissed the application. The court emphasised that the principle of totality should ensure that the overall punishment reflects the intended sentence, not the time actually served due to administrative mistakes.

Orders

Orders of the court

Application dismissed.

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

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CITATION:	R v Russell [2021] QCA 35
PARTIES:	R v RUSSELL, Brian Benjamin (applicant)
FILE NO/S:	CA No 135 of 2020 DC No 511 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 16 June 2020 (Rafter SC DCJ)
DELIVERED ON:	5 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2021
JUDGES:	Fraser and McMurdo JJA and Boddice J
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was released from custody too early in relation to a previous sentence due to administrative error in not-extending parole release date – where the applicant was not at fault for the administrative error – whether the principle of totality misapplied – whether the principle of totality merits regard to actual time spent in custody due to error or time that should have been spent in custody due to the previous sentence – whether the sentence was manifestly excessive in all the circumstances Crimes Act 1914 (Cth), s 16A(1) Criminal Code Act 1995 (Cth), s 134.2 R v Anderson[2012] QCA 264, cited R v Buckman[2016] QCA 176, cited R v Coutts[2016] QCA 206, cited R v Etheridge[2016] QCA 241, cited R v Gordon (1994) 71 A Crim R 459, cited R v Host (2015) 248 A Crim R 352; [2015] WASCA 23, cited R v Ireland; Ex parte Attorney General (Qld)[2019] QCA 58, cited R v Massey[2015] QCA 254, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, distinguished Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited R v Russell [2019] 1 Qd R 181; [2018] QCA 96, cited Reg v Stringfellow, Unreported; Court of Criminal Appeal (Q); 8 November 1984, distinguished R v Todd [1982] 2 NSWLR 517, distinguished Wheeler v The Queen [No 2] [2010] WASCA 105, cited
COUNSEL:	J P Benjamin for the applicant B J Power for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Commonwealth) for the respondent