R v Safi

Case [2015] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v Safi [2015] QCA 13

PARTIES:

R
v
SAFI, Christopher Robert
(applicant)

FILE NO/S:

CA No 220 of 2014
SC No 55 of 2013
SC No 58 of 2013
SC No 33 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Townsville

DELIVERED ON:

20 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2015

JUDGES:

Holmes and Fraser and Morrison JJA
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 OR INADEQUATE – where the applicant had pleaded guilty to two charges of trafficking in a dangerous drug and related indictable offences of possessing dangerous drugs and six summary offences – where the applicant was sentenced to ten years imprisonment for the first trafficking offence, seven years imprisonment, to be served concurrently, for the second and convicted but not further punished for the additional indictable and summary offences – where the value of the drugs trafficked was over $190,000 – where there was evidence of threatened violence by the applicant – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant made submissions regarding his remorse through a psychiatric expert report – where the sentencing judge concluded the applicant’s prospects of rehabilitation were slight – where the sentencing judge did not quote from the psychiatric expert report in sentencing the applicant – whether the sentencing judge failed to take into account the applicant’s remorse

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to all charges – where s 13(3) Penalties and Sentences Act 1992 (Qld) requires that the court must state in open court that it took account of the guilty plea in determining the sentence – where the sentencing judge did not make such a statement – where it appeared the sentencing judge had taken the plea into account – whether the sentence must be reviewed

Penalties and Sentences Act 1992 (Qld), s 13(3)

R v Feakes[2009] QCA 376, considered
R v Galeano[2013] 2 Qd R 464, [2013] QCA 51, considered
R v Johnson[2014] QCA 79, considered
R v Kashton [2005] QCA 70, considered
R v Mallon[1997] QCA 58, cited
R v Ryan[2014] QCA 78, considered

COUNSEL:

P Callaghan SC for the applicant
D L Meredith for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. HOLMES JA:  I agree with the reasons of Fraser JA and the order he proposes.

  2. FRASER JA:  The applicant pleaded guilty to two offences of trafficking in a dangerous…

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Details
AGLC
R v Safi [2015] QCA 13
Case
[2015] QCA 13
Decision Date

CaseChat Overview and Summary

In the case of R v Safi, the applicant appealed against the sentence he received following his guilty plea to two charges of trafficking in a dangerous drug, as well as related indictable and summary offences. The sentencing judge imposed a sentence of ten years imprisonment for the first trafficking offence, and seven years imprisonment, to be served concurrently, for the second trafficking offence. The applicant was convicted but not further punished for the additional indictable and summary offences. The applicant argued that the sentence was manifestly excessive, that the sentencing judge acted on the wrong principle by not considering his remorse, and that the sentence should be reviewed because the sentencing judge failed to state in open court that the guilty plea was taken into account in determining the sentence.

The court considered the applicant's arguments and found that the sentencing judge did not act on the wrong principle by failing to consider the applicant's remorse. The sentencing judge referred to the psychiatric expert report and expressed opinions that the applicant was an excellent candidate for further chemical dependency rehabilitation and that he had good to excellent insight into the nature and severity of the chemical dependency issues he had faced. The sentencing judge also understood the importance and value of recurrent efforts that chemical dependency rehabilitation and that the applicant was highly motivated to maintain his current level of sobriety as a necessary step towards lifelong sobriety. The court found that it was not necessary for the sentencing judge to quote the particular passage upon which the applicant relied.

The court also considered the argument that the sentencing judge failed to state in open court that the guilty plea was taken into account in determining the sentence. However, the court found that it appeared the sentencing judge had taken the plea into account, and therefore, the sentence did not need to be reviewed on this basis.

The final orders of the court were that the application for leave to appeal against sentence was refused. The court found that the sentencing judge did not act on the wrong principle or fail to state in open court that the guilty plea was taken into account in determining the sentence, and therefore, the sentence was not manifestly excessive.

Orders

Orders of the court

Application for leave to appeal against sentence 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

Under the heading “[my] observations of rehabilitation and the prospects of rehabilitation” the psychiatrist expressed opinions that: “the applicant is an excellent candidate for further chemical dependency rehabilitation… has good to excellent insight into the nature and severity of the chemical dependency issues he has faced … also continues to understand the importance and value of recurrent efforts that chemical dependency rehabilitation, and he is highly motivated to maintain his current level of sobriety as a necessary step towards lifelong sobriety…” The applicant’s “best odds of achieving lifelong sobriety would improve with the quality of the rehabilitation services with which he is provided …” His involvement with drugs for personal use and for sale was motivated by his dependency on drugs and driven to a degree by “his taste for some of the finer things in life … and he wanted them without having to work for them.” His risk of reoffending would be “highly correlated with his sobriety, as he will be at much higher risk of re-offending if he is not sober …”Consideration The sentencing judge concluded that the applicant’s long history of drug offences and abuse of drugs, his preparedness to involve himself in a significant trafficking operation in 2011, and his preparedness to resume trafficking of drugs in 2012, were factors showing that the applicant’s prospects of rehabilitation should be regarded as slight. In that respect, the sentencing judge referred to defence counsel’s submission that the applicant’s prospects of rehabilitation as indicated by the psychiatrist should be taken into account and referred in terms to the observations made by the psychiatrist, which the sentencing judge regarded as being “guarded.” The sentencing judge remarked that the applicant’s prospects of rehabilitation “depend upon your continued sobriety,” that he was required to take into account “the need to reflect or fashion a sentence so as to achieve what prospects there are of rehabilitation,” that the applicant’s prospects of rehabilitation were not as high as those of the offender in R v Galeano [2013] QCA 51, and that the circumstance that the applicant committed the second trafficking offence when he was on bail for the earlier offending was a significant factor bearing upon the applicant’s prospects of rehabilitation. Those sentencing remarks require rejection of the applicant’s ground of appeal that the sentencing judge did not take into account the applicant’s rehabilitation as a relevant mitigating factor. The argument presented for the applicant in this Court was instead to the effect that, although it was open to the sentencing judge to conclude that the applicant’s commission of the second trafficking offence whilst on bail for the first trafficking offence weighed against his prospects of rehabilitation, the sentencing judge erred by failing to acknowledge a particular passage in the psychiatric report. In that passage the psychiatrist expressed opinions that the applicant was “an excellent candidate for further chemical dependency rehabilitation,” that he had “good to excellent insight into the nature and severity of the chemical dependency issues he has faced,” that he understood “the importance and value of recurrent efforts that chemical dependency rehabilitation,” and that he was “highly motivated to maintain his current level of sobriety is a necessary step towards lifelong sobriety.” In light of the sentencing judge’s remarks to which I have referred, I am unable to accept that the sentencing judge did not take this aspect of the psychiatrist’s opinion into account. It was not necessary for the sentencing judge to quote the particular passage upon which the applicant relied.