R v HILDEBRAND, Benjamin Zac (appellant/applicant)
FILE NO/S:
CA No 224 of 2015 CA No 247 of 2015 SC No 449 of 2014
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application Appeal against Conviction & Sentence
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Convictions: 15 September 2015; Date of Sentences: 21 September 2015
DELIVERED ON:
15 November 2016
DELIVERED AT:
Brisbane
HEARING DATE:
21 June 2016
JUDGES:
Fraser and Morrison JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
In CA No 224 of 2015 (Schelvis)
The application for leave to appeal against sentence is refused.
In CA No 247 of 2015 (Hildebrand)
1. The appeal is dismissed.
2. The application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where after a 10 day trial the appellant Hildebrand was found guilty of conspiring with others to import a commercial quantity of 3,4-Methylenedioxymethamphetamine – where under s 11.5(1) of the Criminal Code (Cth) the jury must have been satisfied beyond reasonable doubt that Hildebrand intended to participate in the importation of a border controlled drug – where Hildebrand contended that the evidence did not support a finding that he intended to participate in the importation of a border controlled drug – where the respondent argued that Hildebrand’s evidence was not reconcilable with the evidence given by Schelvis – where the respondent further contended there was a sufficient basis for the jury to reject Hildebrand’s evidence – whether it was reasonable for the jury to conclude that, notwithstanding the evidence in the defence case, the prosecution had proved beyond a reasonable doubt that when Hildebrand engaged in the conduct discussed in these reasons he knew of and intended the importation of the drug
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where after a 10 day trial the applicant Schelvis was found guilty of conspiring with others to import a commercial quantity of 3,4-Methylenedioxymethamphetamine – where the applicant Schelvis was sentenced to 21 years imprisonment with a non-parole period of 14 years – where the applicant Schelvis contends that the facts personal to her warranted a sentence towards the bottom of the range proposed on her behalf, particularly in relation to the non-parole period – where the respondent argued that the personal considerations referred to by the applicant Schelvis were accommodated in the sentence – where the respondent further argued that the sentence imposed was well justified by comparison to past sentences and the sentence reflected the objectively great seriousness of the offence and the need for a deterrent…
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.
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Details
AGLC
R v Schelvis; R v Hildebrand [2016] QCA 294
Case
[2016] QCA 294
Decision Date
CaseChat Overview and Summary
The case of R v Schelvis involved two appeals, one against conviction and sentence by Hildebrand and another against sentence by Schelvis. Hildebrand contested his conviction for conspiring to import a commercial quantity of 3,4-Methylenedioxymethamphetamine, arguing that the evidence did not support a finding of his intent to participate in the importation of the drug. Schelvis contested the severity of her 21-year imprisonment sentence with a non-parole period of 14 years, arguing that personal factors warranted a lesser sentence, particularly concerning the non-parole period. Additionally, Schelvis argued that the sentencing judge should have taken into account the hardship of her potential deportation upon parole.
The legal issues before the court included whether the jury's verdict was unreasonable given the evidence, whether Schelvis's sentence was manifestly excessive, and whether the sentencing judge erred in determining the non-parole period and considering certain factors. The court had to evaluate the sufficiency of the evidence to support Hildebrand's conviction and assess the proportionality and correctness of Schelvis's sentence, including the non-parole period.
The court found that the jury's verdict was not unreasonable given the evidence. Hildebrand's intent to participate in the importation was supported by the totality of the evidence, including inconsistencies in his testimony. Regarding Schelvis's appeal, the court held that the sentence was not manifestly excessive, and the personal considerations were already factored into the sentence. The court also ruled that the sentencing judge did not err in determining the non-parole period by reference to a range, nor did the judge improperly rely on statistical analyses of past sentences. The sentencing judge's approach was deemed appropriate, and the sentence reflected the seriousness of the offence and the need for deterrence.
The final orders were that Hildebrand's appeal against conviction was dismissed, and Schelvis's application for leave to appeal against sentence was refused. Hildebrand's application for leave to appeal against sentence was also dismissed.
Orders
Orders of the court
In CA No 224 of 2015 (Schelvis)
The application for leave to appeal against sentence is refused.
In CA No 247 of 2015 (Hildebrand)
1. The appeal is dismissed.
2. The application for leave to appeal against sentence is refused.