SUPREME COURT OF QUEENSLAND
CITATION:
R v Solway [2023] QCA 267
PARTIES:
R
v
SOLWAY, Jarrod Alexander
(applicant)FILE NO/S:
CA No 105 of 2022
SC No 766 of 2021
SC No 531 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 6 May 2022 (Brown J)
DELIVERED ON:
22 December 2023
DELIVERED AT:
Brisbane
HEARING DATE:
27 October 2023
JUDGES:
Mullins P and Boddice JA and Williams J
ORDER:
Leave to appeal against sentence be refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own pleas of guilty of one count of trafficking in dangerous drugs, 35 related counts of drug offending and three further summary charges – where the sentencing judge reached a starting point of 10 to 11 years imprisonment for the applicant’s objectively serious drug offending, before having regard to mitigating features in the applicant’s favour – where the applicant was ultimately sentenced to an effective head sentence of nine years and 6 months imprisonment – where the applicant was 23 years of age at the time of the offending – where the authorities relied upon at sentence concerned mature offenders with criminal histories – whether those authorities were not truly comparable authorities, thereby leading the sentencing judge into error – whether the mitigating features of the applicant were not adequately reflected in the sentence – whether, in all the circumstances, the sentence imposed was manifestly excessive
R v Berry[2017] QCA 271, cited
R v Boyd[2013] QCA 335, cited
R v Brown[2015] QCA 225, cited
R v Carlisle[2017] QCA 258, cited
R v Kirke[2020] QCA 53, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Randall[2019] QCA 25, cited
R v Tran; Ex parte Attorney-General (Qld)[2018] QCA 22, citedCOUNSEL:
A J Edwards for the applicant
S L Dennis for the respondentSOLICITORS:
Owens & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Boddice JA.
BODDICE JA: Williams J’s comprehensive summary of the applicant’s offending, his mitigating factors and of the sentencing judge’s remarks, allows me to briefly state my reasons for refusing leave to appeal.
First, there was no error in the sentencing judge’s conclusion that the starting point for the applicant’s objectively serious drug offending was a 10 to 11 year sentence.
The applicant engaged in trafficking in multiple dangerous drugs, over a period of almost 10 months. He sourced drugs from Sydney in wholesale amounts on a regular basis, utilising two couriers and vehicles containing hidden compartments to transport the drugs. Whilst he had a limited number of customers, he sold an identified total of 383.15 grams (gross) of MDMA and 71.331 grams (gross) of cocaine, as well as offering to…
Continue reading R v Solway
Sign in free to access the full text
- AGLC
- R v Solway [2023] QCA 267
- Case
- [2023] QCA 267
- Decision Date
CaseChat Overview and Summary
The court considered the issue of whether the sentence was manifestly excessive. The court noted that the applicant was 23 years of age at the time of the offending and that the sentencing judge had identified a starting point of 10 to 11 years imprisonment for the applicant’s objectively serious drug offending. The court further noted that the sentencing judge had taken into account mitigating features in the applicant’s favour, such as his age, and had ultimately sentenced the applicant to an effective head sentence of nine years and 6 months imprisonment. The court observed that the applicant’s submission that the authorities relied upon at sentence concerned mature offenders with criminal histories and were not truly comparable authorities was not substantiated by the evidence. The court also observed that the mitigating features of the applicant were adequately reflected in the sentence, and that the sentence imposed was not manifestly excessive.
The court concluded that the sentence imposed on the applicant was not manifestly excessive or inadequate. The court noted that the sentencing judge had taken into account the seriousness of the offending, as well as the mitigating features in the applicant’s favour, in arriving at the sentence. The court further noted that the sentence imposed was within the range of sentences that could be imposed for the offending, and that the applicant had not demonstrated that the sentence was plainly unjust or could not have been imposed. The court accordingly refused leave to appeal against sentence.
Leave to appeal against sentence be refused.
Orders
Orders of the court
Leave to appeal against sentence be refused.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Ultimately, the respondent contends that the sentence was not unreasonable or plainly unjust. Accordingly, the respondent submits that leave to appeal against sentence ought to be refused.Consideration The issue of sentences at or around ten years imprisonment and the impact of a serious violent offence declaration have previously been specifically considered by the Court of Appeal. In R v Carlisle [2017] QCA 258, Applegarth J, with whom Gotterson and Morrison JJA agreed, considered whether the reduction for a very early plea of guilty and un-declarable pre-sentence custody[35] resulted in a sentence that was manifestly excessive in all of the circumstances. In that case, a sentence of ten years was imposed by the sentencing judge for drug trafficking, with the consequential mandatory serious violent offence declaration.[35]At that time the pre-sentence custody could not be declared as he had also been on remand in relation to other offences. The sentencing judge identified a nominal head sentence of 12 years and made a reduction of two years for the mitigating circumstances and time served in pre-sentence custody. The mitigating factors included an early plea and prospects of rehabilitation were “well-placed”.[36][36]At [26]. In that case, the applicant contended that the nominal head sentence was too high and the mitigating circumstances and time served were not adequately reflected in a reduction of the head sentence. Applegarth J observed:(a)“… in a typical case in which account is taken of a period of pre-sentence custody which is not declarable, the practice is that the pre-sentence custody is taken into account in fixing both the head sentence and the non-parole period. The term ‘backdating’ is a loose expression which is used in this context to refer to the necessary adjustment to a parole eligibility date and to the sentence which otherwise would be imposed. … in arriving at the sentence, account is taken of the pre-sentence custody in full. It is not doubled.”[37](b)“It might be possible to justify a sentence of 10 years’ imprisonment with a requirement to serve eight years before being eligible for parole as not being manifestly excessive if the 12 year starting point adopted by the learned sentencing judge was too favourable to the applicant. However, the comparable cases do not support this conclusion.”[38](c)If the nominal head sentence of 12 years was not manifestly excessive, then a reduction of “only nine months or possibly one year” on account of mitigating circumstances was manifestly inadequate, “particularly for a ‘very early plea’.”[39](d)“… the effect of the starting point, coupled with the inadequate reduction, resulted in a sentence which was manifestly excessive.”[40][37]At [50].[38]At [57].[39]At [103].[40]At [104]. In re-sentencing the applicant in that case, Applegarth J relevantly stated:(a)“… In cases of this kind, much depends upon whether a sentence is reached after taking the early plea of guilty into account in reducing what would otherwise be a sentence of more than 10 years … or whether the sentence is simply arrived at … with the early guilty plea to being taken into account principally in fixing a parole eligibility date. If the former applies, then the real benefit of the early plea of guilty is not simply the reduction of a few years from the otherwise indicated sentence. It extends to not being subject to an automatic serious violent offence declaration. In such a case the offender cannot necessarily expect to have the double benefit of an early plea of guilty also resulting in parole eligibility after serving one third.”[41](b)In the circumstances of the case, a “serious violent offence declaration is not necessary to reflect the seriousness of the conduct. Its seriousness is reflected in the substantial term of the imprisonment. … The imposition of a serious violent offence declaration as a matter of discretion would result in an excessive sentence in all the circumstances.”[42](c)In respect of parole eligibility, “the applicant’s early plea of guilt remains relevant even if account is taken of it in a general sense in arriving at an appropriate head sentence. Having taken the plea of guilty into account in arriving at an effective sentence of nine years, I do not consider that the applicant should be eligible for parole at the usual one third point on account of his early plea. His substantial steps towards his own rehabilitation whilst on remand are deserving of recognition. Although a subsidiary in the operation, and an addict, he played an essential role in a major trafficking operation. Considerations of personal deterrence, general deterrence and denunciation justify parole eligibility later than the usual one third point.”[43][41]At [109].[42]At [111].[43]At [112].