R v SBI

Case [2009] QCA 73 3 April 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v SBI [2009] QCA 73

PARTIES:

R
v
SBI
(applicant)

FILE NO/S:

CA No 326 of 2008
DC No 2950 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2009

JUDGES:

McMurdo P, Chesterman JA, Daubney J
Separate reasons for judgment of each member of the Court, Chesterman JA and Daubney J concurring as to the orders made, McMurdo P dissenting in part

ORDERS:

1. The application is allowed.
2. The orders made in the District Court on 20 November 2008 are set aside.
3. The applicant is sentenced on count 2 to five years imprisonment with a parole eligibility date of 27 November 2009. The 543 days of pre-sentence custody is declared as time already served.
4. The applicant is sentenced on count 1 to 18 months imprisonment to be served concurrently. The 543 days of pre-sentence custody is declared as time already served.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where applicant cooperated with authorities – where applicant gave evidence against co-offenders – where charges would otherwise not have been brought against co-offenders – whether sentencing judge gave adequate recognition to cooperation when imposing sentence

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – SINGLE SENTENCE FOR MULTIPLE OFFENCES – where applicant convicted on two counts – where applicant received a single sentence – whether application should be allowed so as to impose separate sentences for each offence

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

R v Crofts [1999] 2 Qd R 386; (1998) 100 A Crim R 503; [1998] QCA 060, cited
R v D & Attorney-General of Queensland [1995] QCA 332, cited
R v Dolan [2008] QCA 41, cited
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited
R v HAP [2008] QCA 137, cited
R v PX [2005] QCA 246, cited
R v Thompson [1994] QCA 393, cited
R v Webber (2000) 114 A Crim R 381, [2000] QCA 316, applied
R v X [2001] QCA 498, followed
Salameh v R (1991) 55 A Crim R 384, followed

COUNSEL:

C Heaton, with T Harland, for the applicant
P F Rutledge, with S J Page, for the respondent

SOLICITORS:

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

McMURDO P: This is an application for leave to appeal from a sentence of five years imprisonment with parole eligibility set after serving two and a half years. That single sentence was imposed for two offences contained in one indictment: entering premises with intent (count 1) and armed robbery in company with personal violence (count 2). The learned sentencing judge erroneously imposed one penalty with respect to both offences. This error means that the application for leave to appeal must be granted and…

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 SBI

Details

AGLC: R v SBI [2009] QCA 73
Case: [2009] QCA 73
Decision Date: 3 April 2009

CaseChat Overview and Summary

The case of R v SBI involved an applicant appealing against their sentence, arguing that the sentencing judge did not adequately consider their cooperation with authorities when imposing the sentence. The applicant had cooperated with authorities and provided evidence against co-offenders, which would not have led to charges against them if not for the applicant's cooperation. The applicant also argued that the single sentence imposed for two separate offences was inappropriate. The court was required to decide whether the sentencing judge's failure to consider the applicant's cooperation warranted interference and whether separate sentences for each offence should be imposed.

The court considered the applicant's cooperation and the impact it had on the case, acknowledging that it was significant and should have been taken into account by the sentencing judge. The court also examined the appropriateness of imposing a single sentence for multiple offences. The court held that the sentencing judge did not adequately recognise the applicant's cooperation, and that separate sentences for each offence would be more appropriate. The court found that the applicant's cooperation was a substantial mitigating factor that should have been considered, and that the single sentence imposed did not adequately reflect the nature and circumstances of the offences.

The court allowed the application and set aside the orders made by the District Court. The applicant was sentenced to five years imprisonment with a parole eligibility date of 27 November 2009 on count 2, with the 543 days of pre-sentence custody declared as time already served. The applicant was also sentenced to 18 months imprisonment to be served concurrently on count 1, with the 543 days of pre-sentence custody declared as time already served. This decision highlights the importance of considering cooperation with authorities and the appropriateness of sentencing for multiple offences.

Orders

Orders of the court

1. The application is allowed.

2. The orders made in the District Court on 20 November 2008 are set aside.

3. The applicant is sentenced on count 2 to five years imprisonment with a parole eligibility date of 27 November 2009. The 543 days of pre-sentence custody is declared as time already served.

4. The applicant is sentenced on count 1 to 18 months imprisonment to be served concurrently. The 543 days of pre-sentence custody is declared as time already served.

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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Actions

Citations

R v SBI [2009] QCA 73

Most Recent Citation

R v Hay [2010] QCA 107

Cases Citing This Decision

R v Samarasekera [2021] QCA 239
Citation 1 (Para 19)

…ntences Act 1992 (Qld) s 13A. [17] Barbaro v The Queen (2014) 253 CLR 58 at 72 [34]. [18] R v Webber (2000) 114 A Crim R 381 at [4] and [16]; R v SBI [2009] QCA 73 at [6]; R v SBS [2010] QCA 108 at [19]; SZ v The Queen (2007) 168 A Crim R 249 at 258; R v El Hani [2004] NSWCCA 162.…
R v Macklin [2016] QCA 244
Citation 2 (Para 14)

…should also be some amelioration to reflect the pleas of guilty.[10] [4][2013] QCA 158. [5][2007] QCA 181. [6][1996] QCA 34. [7][2001] QCA 474. [8][2009] QCA 73. [9][2006] QCA 121. [10]T1-30, AB 68.…
R v Kaq; R v Kaq; Ex parte Attorney-General (Qld) [2015] QCA 98
Citation 3 (Para 24)

…[32] R v Webber [2000] QCA 316, [16]. [33] Webber , above, [5] cited in R v WAW [2013] QCA 22, [24], [49] and [73], and in R v SBI [2009] QCA 73, [26]. [34] R v D , Queensland Court of Appeal judgment delivered 4 August 1995; cited in R v Ianculescu [1999] QCA 439, [1], [5], [6] per Pincus JA. Error Below and R…
R v KAK [2013] QCA 310
Citation 4 (Para 1)

…QCA 92 at [31]; R v Norton [2007] QCA 320; R v Blanch [2008] QCA 253 at [24]. [12] R v Webber (2000) 114 A Crim R 381 at [4] and [16]; R v SBI [2009] QCA 73 at [6]; R v SBS [2010] QCA 108 at [19]. [13](2006) 172 A Crim R 151 at [54].…
R v WAW [2013] QCA 22
Citation 5 (Para 1)

…le correct” solution. [9] R v KAC [2010] QCA 39 at [17]; R v Burke [2002] NSWCCA 353. [10] R v Webber [2000] QCA 316 at [5]; see also R v SBI [2009] QCA 73 at [26]–[27]. [11](2005) 228 CLR 357 at 371.…
BJI v NRS [2010] QDC 447
Citation 6 (Para 1)

…h whom Daubney J agreed) referred with approval to the statements of McMurdo P and McPherson JA in R v X [136] and Kirby P in Salameh v R .[137] [135][2009] QCA 73 at [34] and [35]. [136][2001] QCA 498. [137](1991) 55 A Crim R 384 at 388.…
BJI v NRS [2010] QCA 447
Citation 7 (Para 1)

…h whom Daubney J agreed) referred with approval to the statements of McMurdo P and McPherson JA in R v X [136] and Kirby P in Salameh v R .[137] [135][2009] QCA 73 at [34] and [35]. [136][2001] QCA 498. [137](1991) 55 A Crim R 384 at 388.…
R v SBS [2010] QCA 108
Citation 8 (Para 1)

…substantial discount to their sentences is required. The legislature has given recognition to that principle in enacting s 13A. [6]Above at [27]. [7][2009] QCA 73, [6]. [8][1994] QCA 393. [9][1995] QCA 332. [10](2000) 115 A Crim R 446; [2000] QCA 352. [11][2005] QCA 246, [5]-[6].…
R v Hay [2010] QCA 107
Citation 9 (Para 1)

…re are pleas of guilty and cooperation with the authorities. Like almost all sentence appeals, Thompson turns very much on its own facts. [5] R v SBI [2009] QCA 73, [34]; R v X [2001] QCA 498; R v Salameh (1991) 55 A Crim R 384, 388.…

See all citing cases →

Cases Cited

R v HAP [2008] QCA 137
Citation 1 (Para 1)

…appeal allowed; the Court must now re-sentence the applicant: R v Crofts ,[1] R v Dolan [2] and R v HAP .[3] [1][1998] QCA 060. [2][2008] QCA 41. [3][2008] QCA 137.…
R v Dolan [2008] QCA 41
Citation 2 (Para 1)

…be granted and the appeal allowed; the Court must now re-sentence the applicant: R v Crofts ,[1] R v Dolan [2] and R v HAP .[3] [1][1998] QCA 060. [2][2008] QCA 41. [3][2008] QCA 137.…
R v PX [2005] QCA 246
Citation 3 (Para 1)

….[7] The legislature has given statutory recognition to that principle in enacting s 13A. [4][1994] QCA 393. [5][1995] QCA 332. [6][2000] QCA 352. [7][2005] QCA 246 at [5]-[6].…
R v X [2001] QCA 498
Citation 4 (Para 1)

…This approach conflicts with authority. In R v X [10] McMurdo P said: [10][2001] QCA 498.…
R v Gladkowski [2000] QCA 352
Citation 5 (Para 1)

…ski [6] and R v PX .[7] The legislature has given statutory recognition to that principle in enacting s 13A. [4][1994] QCA 393. [5][1995] QCA 332. [6][2000] QCA 352. [7][2005] QCA 246 at [5]-[6].…
R v Webber [2000] QCA 316
Citation 6 (Para 1)

…on count 2 of five years’ imprisonment with a parole eligibility date after serving two years, and a lesser concurrent sentence on count 1. [8][2000] QCA 316 at [4] and [5].…
R v D & Attorney-General of Queensland [1995] QCA 332
Citation 7 (Para 1)

…nd ,[5] R v Gladkowski [6] and R v PX .[7] The legislature has given statutory recognition to that principle in enacting s 13A. [4][1994] QCA 393. [5][1995] QCA 332. [6][2000] QCA 352. [7][2005] QCA 246 at [5]-[6].…
R v Thompson [1994] QCA 393
Citation 8 (Para 1)

…General of Queensland ,[5] R v Gladkowski [6] and R v PX .[7] The legislature has given statutory recognition to that principle in enacting s 13A. [4][1994] QCA 393. [5][1995] QCA 332. [6][2000] QCA 352. [7][2005] QCA 246 at [5]-[6].…
[1998] QCA 060 [1998] QCA 060
Citation 9 (Para 1)

…ave to appeal must be granted and the appeal allowed; the Court must now re-sentence the applicant: R v Crofts ,[1] R v Dolan [2] and R v HAP .[3] [1][1998] QCA 060. [2][2008] QCA 41. [3][2008] QCA 137.…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 13A
2 mentions (from Para 1)

CITATION:	R v SBI [2009] QCA 73
PARTIES:	R v SBI (applicant)
FILE NO/S:	CA No 326 of 2008 DC No 2950 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2009
JUDGES:	McMurdo P, Chesterman JA, Daubney J Separate reasons for judgment of each member of the Court, Chesterman JA and Daubney J concurring as to the orders made, McMurdo P dissenting in part
ORDERS:	1. The application is allowed. 2. The orders made in the District Court on 20 November 2008 are set aside. 3. The applicant is sentenced on count 2 to five years imprisonment with a parole eligibility date of 27 November 2009. The 543 days of pre-sentence custody is declared as time already served. 4. The applicant is sentenced on count 1 to 18 months imprisonment to be served concurrently. The 543 days of pre-sentence custody is declared as time already served.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where applicant cooperated with authorities – where applicant gave evidence against co-offenders – where charges would otherwise not have been brought against co-offenders – whether sentencing judge gave adequate recognition to cooperation when imposing sentence CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – SINGLE SENTENCE FOR MULTIPLE OFFENCES – where applicant convicted on two counts – where applicant received a single sentence – whether application should be allowed so as to impose separate sentences for each offence Penalties and Sentences Act 1992 (Qld), s 13A R v Crofts [1999] 2 Qd R 386; (1998) 100 A Crim R 503; [1998] QCA 060, cited R v D & Attorney-General of Queensland [1995] QCA 332, cited R v Dolan [2008] QCA 41, cited R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited R v HAP [2008] QCA 137, cited R v PX [2005] QCA 246, cited R v Thompson [1994] QCA 393, cited R v Webber (2000) 114 A Crim R 381, [2000] QCA 316, applied R v X [2001] QCA 498, followed Salameh v R (1991) 55 A Crim R 384, followed
COUNSEL:	C Heaton, with T Harland, for the applicant P F Rutledge, with S J Page, for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent