R v Skeli - [2017] QCA 191

[2017] QCA 191

COURT OF APPEAL

GOTTERSON JA
MORRISON JA
FLANAGAN J

CA No 116 of 2017
SC No 56 of 2014
SC No 916 of 2015

THE QUEEN

SKELI, Zef Applicant

BRISBANE

FRIDAY, 1 SEPTEMBER 2017

JUDGMENT

FLANAGAN J: The applicant seeks an extension of time within which to appeal against sentence. He was sentenced in the Brisbane Supreme Court on 18 November 2015. On that occasion, he was sentenced in relation to six drug-related charges, the most serious being count 4: trafficking in a dangerous drug, heroin, during the period 16 February 2011 to 19 December 2011. The applicant was also dealt with for the breach of two suspended sentences imposed by the District Court on 4 March 2011 and 20 December 2011.

On 4 March 2011, the applicant was sentenced in the District Court for a sexual assault which had occurred on 8 July 2007. He was sentenced to 12 months’ imprisonment, which was wholly suspended with an operational period of three years. By committing the offences in counts 4, 5, 6, 7 and 8 on the indictment, the applicant breached the suspended sentence. The applicant was therefore at risk of the learned sentencing judge ordering pursuant to s 147(1)(b) of the Penaltiesand Sentences Act 1992 that he serve the whole of the suspended imprisonment of 12 months.

On 20 December 2011, he was sentenced in the District Court for perjury. He was sentenced to 18 months’ imprisonment to be suspended for two years after he has served three months. By committing the offences in counts 5, 6, 7 and 8, the applicant breached the terms of this suspended sentence. He was therefore at risk of being ordered to serve the whole of the balance of this suspended sentence, being 15 months.

As noted by the learned sentencing judge, when the applicant committed counts 3 and 4 on the indictment, he was on bail for the sexual assault charge which was dealt with by the District Court on 4 March 2011. For the breach of the suspended sentences, his Honour activated six months’ imprisonment in both instances, with those terms of imprisonment to be served concurrently.

For count 3 on the indictment, supplying a dangerous drug, heroin, the applicant was sentenced to two years’ imprisonment. For count 4, the trafficking charge, a head sentence of five years was imposed. For counts 5, 6 and 7, being the supply of a dangerous drug, heroin, two years’ imprisonment was imposed in each instance. For count 8, possessing property used in trafficking in a dangerous drug, six months’ imprisonment was imposed.

All those sentences were ordered to be served concurrently but cumulatively upon the six months partially-activated suspended sentences. His Honour set a parole eligibility date fixed at 17 November 2017. The result was that the applicant was sentenced to five and a half years’ imprisonment with parole eligibility fixed after two years, which was slightly more than a third.

There are two primary considerations in determining whether…

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 Skeli

Details

AGLC: R v Skeli [2017] QCA 191
Case: [2017] QCA 191
Decision Date: 1 SEPTEMBER 2017

CaseChat Overview and Summary

The applicant, Zef Skeli, sought an extension of time to appeal against his sentence imposed by the Brisbane Supreme Court. Skeli was sentenced for multiple drug-related offences, including trafficking in a dangerous drug, heroin, and for breaching two suspended sentences. The legal issues before the Queensland Court of Appeal were whether there was a valid reason for the delay in applying for the extension of time and whether it was in the interests of justice to grant the extension. The Court found that Skeli’s explanation for the delay was unsatisfactory, and the interests of justice did not require the grant of an extension of time. Skeli argued that the sentence imposed was manifestly excessive, but the Court determined that the sentence was appropriate given the totality of his offending, his role in the drug trafficking activities, and the mitigating factors already considered by the sentencing judge. The Court of Appeal dismissed Skeli's application for an extension of time within which to appeal against sentence.

Orders