R v. Serbanoiu - [2007] QCA 257

SUPREME COURT OF QUEENSLAND

CITATION:

R v Serbanoiu [2007] QCA 257

PARTIES:

R
v
SERBANOIU, Ionut Adrian
(applicant/appellant)

FILE NO/S:

CA No 95 of 2007
SC No 1071 of 2006
SC No 204 of 2007
SC No 218 of 2007
SC No 219 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2007

JUDGES:

Williams and Jerrard JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Grant leave to appeal against sentence
2. Allow the appeal only to the extent of setting aside the sentence imposed with respect to the offence of driving without a licence on 20 October 2006, and in lieu thereof ordering that the applicant be imprisoned for a period of three months to be served concurrently with the period of imprisonment ordered with respect to the offences of driving whilst disqualified on 4 April 2006 and 18 July 2006.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to various drug related charges, stealing and traffic offences – where the commission of these offences constituted a breach of a suspended sentence previously imposed – where learned sentencing judge activated the whole of the unserved period, being four months imprisonment, with respect to the breach – where applicant further sentenced to two and a half years imprisonment for the drug offences with those sentences to be served concurrently, but cumulative on the four months imprisonment – where applicant further sentenced to 15 months imprisonment for each of three traffic offences to be served concurrently, but cumulatively on the four months and two and a half years already imposed – where combination of cumulative sentences resulted in an overall head sentence of four years and one month – where applicant disqualified from driving for a period of 4 years – where cooperation with the administration of justice and familial support taken into account in the setting of a parole release date – whether overall penalty imposed was manifestly excessive taking into account the totality principle

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where sentence of 15 months imprisonment imposed on each of three counts of driving without a licence – where two of those counts were charged with a circumstance of aggravation, namely driving whilst disqualified – where the other count was not charged with the circumstance of aggravation, although this circumstance was present at the time of the offence – where maximum penalty for unlicensed driving without a circumstance of aggravation is 12 months…

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. Serbanoiu

Details

AGLC: R v Serbanoiu [2007] QCA 257
Case: [2007] QCA 257
Decision Date: 10 August 2007

CaseChat Overview and Summary

The case of R v. Serbanoiu involved the appellant appealing against his sentence. The appellant had pleaded guilty to various drug-related charges, theft, and traffic offences. These offences were committed while the appellant was on a suspended sentence. The trial judge activated the unserved period of the suspended sentence, imposing a four-month imprisonment term. Additionally, the appellant was sentenced to two and a half years imprisonment for the drug offences, and 15 months imprisonment for each of the three traffic offences, all to be served concurrently but cumulatively with the four months and two and a half years already imposed. The appellant argued that the overall penalty imposed was manifestly excessive, particularly considering the totality principle and his cooperation with the administration of justice and familial support.

The primary legal issue before the court was whether the overall penalty imposed was manifestly excessive, taking into account the totality principle. The court also had to determine if the sentence imposed for the offence of driving without a licence, where the circumstance of aggravation was not charged, was manifestly excessive. The court considered the maximum penalty for unlicensed driving without a circumstance of aggravation, which is 12 months imprisonment, and the appellant's six-page traffic history.

In its reasoning, the court held that the totality principle required a consideration of the cumulative effect of all sentences imposed. The court found that the overall penalty was not manifestly excessive, taking into account the totality principle and the appellant's cooperation with the administration of justice. However, the court did find that the sentence imposed for the offence of driving without a licence on 20 October 2006 was manifestly excessive. The court ordered that the sentence be reduced to three months imprisonment, to be served concurrently with the sentences for the other offences. The court allowed the appeal in part, setting aside the sentence for the offence of driving without a licence and imposing a new sentence of three months imprisonment.

The final orders of the court were to grant leave to appeal against the sentence and to allow the appeal only to the extent of setting aside the sentence imposed with respect to the offence of driving without a licence on 20 October 2006, and in lieu thereof ordering that the appellant be imprisoned for a period of three months to be served concurrently with the period of imprisonment ordered with respect to the offences of driving whilst disqualified on 4 April 2006 and 18 July 2006.

Orders

Orders of the court

1. Grant leave to appeal against sentence

2. Allow the appeal only to the extent of setting aside the sentence imposed with respect to the offence of driving without a licence on 20 October 2006, and in lieu thereof ordering that the applicant be imprisoned for a period of three months to be served concurrently with the period of imprisonment ordered with respect to the offences of driving whilst disqualified on 4 April 2006 and 18 July 2006.

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 Serbanoiu [2007] QCA 257
PARTIES:	R v SERBANOIU, Ionut Adrian (applicant/appellant)
FILE NO/S:	CA No 95 of 2007 SC No 1071 of 2006 SC No 204 of 2007 SC No 218 of 2007 SC No 219 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2007
JUDGES:	Williams and Jerrard JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Grant leave to appeal against sentence 2. Allow the appeal only to the extent of setting aside the sentence imposed with respect to the offence of driving without a licence on 20 October 2006, and in lieu thereof ordering that the applicant be imprisoned for a period of three months to be served concurrently with the period of imprisonment ordered with respect to the offences of driving whilst disqualified on 4 April 2006 and 18 July 2006.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant pleaded guilty to various drug related charges, stealing and traffic offences – where the commission of these offences constituted a breach of a suspended sentence previously imposed – where learned sentencing judge activated the whole of the unserved period, being four months imprisonment, with respect to the breach – where applicant further sentenced to two and a half years imprisonment for the drug offences with those sentences to be served concurrently, but cumulative on the four months imprisonment – where applicant further sentenced to 15 months imprisonment for each of three traffic offences to be served concurrently, but cumulatively on the four months and two and a half years already imposed – where combination of cumulative sentences resulted in an overall head sentence of four years and one month – where applicant disqualified from driving for a period of 4 years – where cooperation with the administration of justice and familial support taken into account in the setting of a parole release date – whether overall penalty imposed was manifestly excessive taking into account the totality principle CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where sentence of 15 months imprisonment imposed on each of three counts of driving without a licence – where two of those counts were charged with a circumstance of aggravation, namely driving whilst disqualified – where the other count was not charged with the circumstance of aggravation, although this circumstance was present at the time of the offence – where maximum penalty for unlicensed driving without a circumstance of aggravation is 12 months…