R v Samarasekera - [2021] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

R v Samarasekera [2021] QCA 239

PARTIES:

R
v
SAMARASEKERA, Rohana Lincoln
(applicant)

FILE NO/S:

CA No 66 of 2021
DC No 1790 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 29 March 2021 (Clare SC DCJ)

DELIVERED ON:

9 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2021

JUDGES:

Mullins JA and Boddice and Crow JJ

ORDER:

The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was Director of Engineering at a regional council – where the applicant, using his position, ensured the council entered into a contract with an associate’s business – where the applicant, over approximately three years received, via his wife, secret commissions totally approximately $120,000 – where the applicant was convicted on his own plea of guilty of 79 counts of receipt of secret commission by an agent – where the applicant was sentenced to five years imprisonment to be suspended after having served 20 months, with an operational period of five years – where the applicant applies for leave to appeal against his sentence on the grounds that it is manifestly excessive – whether the sentence ought to have been wholly suspended, or if a suspension was warranted, whether a lesser term of imprisonment prior to suspension should have been imposed instead

R v Gmeinder[2001] QCA 354, distinguished
R v Mackay[2019] QCA 97, distinguished
R v Nuttall [2011] 1 Qd R 270; [2010] QCA 64, distinguished
R v Pham (2015) 256 CLR 550; [2015] HCA 39, followed
R v Wulff; R v Oxenbridge; R v Myers; R v Walker[2019] QCA 183, distinguished

COUNSEL:

The applicant appeared on his own behalf
D Nardone for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MULLINS JA: I agree with Crow J.
BODDICE J: I agree with Crow J.
CROW J: On 29 March 2021, the applicant pled guilty to 79 counts of receipt of a secret commission by an agent.[1] He was sentenced to five years’ imprisonment, suspended after having served 20 months and with an operational period of five years. The applicant seeks leave to appeal, not the head sentence of five years’ imprisonment, but rather the 20-month period of imprisonment prior to suspension. The sole basis of the applicant’s appeal is that the sentence imposed was manifestly excessive.
[1]Criminal Code (Qld) s 442B(a).
The crime of receipt of a secret commission by an agent carries with it a maximum sentence of seven years’ imprisonment.[2]
[2]Criminal Code (Qld) s 442B(a).
The applicant was the Director of Engineering at the Etheridge Shire Council (“the Council”) and responsible for all aspects of the engineering services for the Council, including the appointment of contractors,…

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 Samarasekera

Details

AGLC: R v Samarasekera [2021] QCA 239
Case: [2021] QCA 239
Decision Date: 9 November 2021

CaseChat Overview and Summary

The applicant, Samarasekera, who was the Director of Engineering at a regional council, was convicted on his own plea of guilty to 79 counts of receiving secret commissions by an agent. He used his position to ensure the council entered into a contract with a business associated with him, and over approximately three years, he received approximately $120,000 in secret commissions via his wife. He was sentenced to five years imprisonment, suspended after 20 months, with a five-year operational period. The applicant sought leave to appeal against his sentence, arguing it was manifestly excessive and that it should have been wholly suspended or, if a suspension was warranted, a lesser term of imprisonment should have been imposed.

The court was required to decide whether the sentence imposed by the primary judge was manifestly excessive or inadequate. The applicant argued that the sentence should have been wholly suspended or, if a suspension was warranted, a lesser term of imprisonment should have been imposed instead. The central issue was whether the primary judge's sentence was outside the range of sentences that could be considered reasonable in all the circumstances of the case.

The court found that the sentence imposed was within the range of sentences that could be considered reasonable in all the circumstances of the case. The court emphasised the seriousness of the applicant's conduct, including the abuse of position, the substantial amount of money involved, and the significant impact on the council. The court also noted the need for general and specific deterrence. The court concluded that the sentence was not manifestly excessive or inadequate, and the application for leave to appeal against the sentence was dismissed.

The application for leave to appeal against sentence is dismissed.

Orders

Orders of the court

The application for leave to appeal against sentence is dismissed.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Samarasekera [2021] QCA 239
PARTIES:	R v SAMARASEKERA, Rohana Lincoln (applicant)
FILE NO/S:	CA No 66 of 2021 DC No 1790 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 29 March 2021 (Clare SC DCJ)
DELIVERED ON:	9 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2021
JUDGES:	Mullins JA and Boddice and Crow JJ
ORDER:	The application for leave to appeal against sentence is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was Director of Engineering at a regional council – where the applicant, using his position, ensured the council entered into a contract with an associate’s business – where the applicant, over approximately three years received, via his wife, secret commissions totally approximately $120,000 – where the applicant was convicted on his own plea of guilty of 79 counts of receipt of secret commission by an agent – where the applicant was sentenced to five years imprisonment to be suspended after having served 20 months, with an operational period of five years – where the applicant applies for leave to appeal against his sentence on the grounds that it is manifestly excessive – whether the sentence ought to have been wholly suspended, or if a suspension was warranted, whether a lesser term of imprisonment prior to suspension should have been imposed instead R v Gmeinder[2001] QCA 354, distinguished R v Mackay[2019] QCA 97, distinguished R v Nuttall [2011] 1 Qd R 270; [2010] QCA 64, distinguished R v Pham (2015) 256 CLR 550; [2015] HCA 39, followed R v Wulff; R v Oxenbridge; R v Myers; R v Walker[2019] QCA 183, distinguished
COUNSEL:	The applicant appeared on his own behalf D Nardone for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent