R v TAS

Case [2021] QCA 49 19 March 2021

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SUPREME COURT OF QUEENSLAND

CITATION:

R v TAS [2021] QCA 49

PARTIES:

R
v
TAS
(applicant)

FILE NO/S:

CA No 323 of 2019
SC No 213 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 28 November 2019 (Dalton J)

DELIVERED ON:

19 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

13 August 2020

JUDGES:

Morrison and McMurdo JJA and North J

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Vary the sentence imposed for count one on the indictment, by substituting a term of nine years’ imprisonment, setting aside the declaration of the commission of a serious violent offence, and ordering that the applicant be eligible for parole on 10 June 2025.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the applicant pleaded guilty to trafficking dangerous drugs – where the applicant pleaded guilty to the circumstance of aggravation that he was a participant in a criminal organisation within the meaning of s 161P of the Penalties and Sentences Act 1992 (Qld) – where s 161R of the Penalties and Sentence Act 1992 (Qld) was engaged – where the applicant cooperated with authorities and gave an undertaking to cooperate in future, engaging s 161S of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge sentenced the applicant in open court and gave an indicative sentence in closed court pursuant to the procedure in s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the indicative sentence must include the “mandatory component” required by s 161R – whether s 161S wholly displaces the operation of s 161R – whether the ultimate sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant couriered drugs and cash for a criminal organisation – where the applicant was not a drug user – where the applicant trafficked wholly for financial reasons – where the applicant trafficked for a period of three years and eight months – where the applicant was a trusted member of the criminal organisation – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the sentencing judge halved what would have been the sentence but for applicant’s cooperation – whether the reduction was so inadequate that it must be inferred that the judge made some error

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the applicant disclosed previous offending which did not form part of the indictment – where the applicant secured an indemnity from prosecution for the previous offending – where the sentencing judge considered the indemnity from prosecution – whether the sentencing judge erred in holding that a partial indemnity against prosecution was…

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 TAS

Details

AGLC: R v TAS [2021] QCA 49
Case: [2021] QCA 49
Decision Date: 19 March 2021

CaseChat Overview and Summary

The case before the court involved an applicant who had pleaded guilty to drug trafficking and to being part of a criminal organisation. The applicant had also cooperated with authorities and given an undertaking to cooperate in the future. The applicant was sentenced in open court and an indicative sentence was given in closed court, following the procedure in section 13A of the Penalties and Sentences Act 1992 (Qld). The court had to decide whether the indicative sentence must include the “mandatory component” required by section 161R and whether section 161S wholly displaces the operation of section 161R. The court also had to consider whether the ultimate sentence was manifestly excessive.

The court found that the applicant's sentence must be reduced to avoid an unacceptable disparity with the sentence subsequently imposed upon a co-offender whose offending was more serious. The court found that the sentencing judge had not erred in holding that a partial indemnity against prosecution was a significant benefit to the applicant, so as to lessen the credit which should be given to his undertaking to cooperate. The court found that the applicant's cooperation and undertaking to cooperate in the future were relevant factors that should be taken into account when determining the appropriate sentence.

The court concluded that the applicant's sentence should be reduced to a term of nine years, with parole eligibility after six years. The court granted leave to appeal and allowed the appeal. The court varied the sentence imposed for count one on the indictment, by substituting a term of nine years’ imprisonment, setting aside the declaration of the commission of a serious violent offence, and ordering that the applicant be eligible for parole on 10 June 2025.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Vary the sentence imposed for count one on the indictment, by substituting a term of nine years’ imprisonment, setting aside the declaration of the commission of a serious violent offence, and ordering that the applicant be eligible for parole on 10 June 2025.

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

The parity principle does not require “that sentences must strictly compare”.[20] Nevertheless, the applicant’s sentence must be reduced, not because of any error made by the sentencing judge, but to avoid an unacceptable disparity with the sentence subsequently imposed upon a co-offender whose offending was more serious. The applicant’s sentence should be reduced to a term of nine years, with parole eligibility after six years.[20]Lowe v The Queen (1984) 154 CLR 606 at 612 per Mason J.Conclusion I would order as follows:1.Leave to appeal granted.2.Appeal allowed.3.Vary the sentence imposed for count one on the indictment, by substituting a term of nine years’ imprisonment, setting aside the declaration of the commission of a serious violent offence, and ordering that the applicant be eligible for parole on 10 June 2025.[21][21]Being six years from the date of the original sentence (28 November 2019), reduced by 171 days of declared pre-sentence custody. NORTH J: I agree with McMurdo JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

R v TAS [2021] QCA 49

Most Recent Citation

R v Hirst [2023] QCA 25

Cases Citing This Decision

Pearson v Denman [2023] QDC 221
Citation 1 (Para 11)

…settled and contested claims. That is so even where the settled claims are the subject of earlier Court orders, as is the case here. [2] R v TAS [2021] QCA 49 at [44] [3] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 per Bell, Gageler, Keane, Nettle and Gordon JJ at [22],…
R v Granz-Glenn [2023] QCA 157
Citation 2 (Para 1)

…icant.[14] [13] Jones v The Queen (1993) 67 ALJR 376 at 377; R v Henderson [2014] QCA 12 at [115]; Valsamakis v R [2016] NSWCCA 156 at [162]; R v TAS [2021] QCA 49; Kitson v R [2022] NSWCCA 166 at [46]. [14] Kitson v R [2022] NSWCCA 166 at [51].…
Wilson v Commissioner of Police [2023] QDC 51
Citation 3 (Para 1)

…d only since the date when the sentence was imposed.[28] [27] Postiglione v R (1997) 189 CLR 295, 301-302 (Dawson and Gaudron JJ). [28] R v TAS [2021] QCA 49, [44].…
R v Hirst [2023] QCA 25
Citation 4 (Para 4)

…Mr Hirst, his sentence can be taken into account for the purpose of determining whether there is a sentencing disparity between co-offenders: R v TAS [2021] QCA 49 at [44]. Objectively speaking, Mr Kovac’s offending was marginally less serious than Mr Hirst’s offending and Mr Kovac had more matters of subjective…

See all citing cases →

Cases Cited

R v PBH [2021] QCA 38
Citation 1 (Para 7)

…or the offender’s future or past cooperation (or both) under the procedure prescribed by s 13A or s 13B. That subject is governed by s 161S. [4][2021] QCA 38.…
R v Luu [2018] QCA 281
Citation 2 (Para 25)

…em. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
R v Carlisle [2017] QCA 258
Citation 3 (Para 25)

…4] and R v Luu ,[15] and described the applicant’s case as more serious than them. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
R v Kaq; R v Kaq; Ex parte Attorney-General (Qld) [2015] QCA 98
Citation 4 (Para 25)

…,[13] R v Truong [14] and R v Luu ,[15] and described the applicant’s case as more serious than them. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
R v Henderson [2014] QCA 12
Citation 5 (Para 14)

…at 301-302 per Dawson and Gaudron JJ. [19] Postiglione v The Queen (1997) 189 CLR 295 at 305 per Dawson and Gaudron JJ; see also R v Henderson [2014] QCA 12 at [115] per Henry J (McMurdo P and Mullins J agreeing).…
R v Kalaja [2012] QCA 329
Citation 6 (Para 26)

…ssed the base component at 13 years. In arriving at the indicative sentence, she reduced this to 11 years, to allow for the AB cooperation. [16][2012] QCA 329.…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 7 (Para 14)

…uced on this ground although the sentencing disparity has emerged only since the date when the sentence was imposed.[19] [17] Green v The Queen (2011) 244 CLR 462 at 474 [30] per French CJ, Crennan and Kiefel JJ. [18] Postiglione v The Queen (1997) 189 CLR 295 at 301-302 per Dawson and Gaudron JJ. [19] Postiglione v…
R v Westphal [2009] QCA 223
Citation 8 (Para 25)

…12] R v Kostopoulos ,[13] R v Truong [14] and R v Luu ,[15] and described the applicant’s case as more serious than them. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
R v Chen [2008] QCA 332
Citation 9 (Para 25)

…and described the applicant’s case as more serious than them. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
R v. Nabhan ; R v Kostopoulos [2007] QCA 266
Citation 10 (Para 25)

…pplicant’s case as more serious than them. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
R v Cooney [2004] QCA 244
Citation 11 (Para 25)

…rred to R v Chen ,[12] R v Kostopoulos ,[13] R v Truong [14] and R v Luu ,[15] and described the applicant’s case as more serious than them. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
R v Truong & Nguyen [2001] QCA 98
Citation 12 (Para 25)

…ore serious than them. [8][2004] QCA 244. [9][2009] QCA 223. [10][2015] QCA 98. [11][2017] QCA 258. [12][2008] QCA 332. [13][2007] QCA 266. [14][2001] QCA 98. [15][2018] QCA 281.…
AB v The Queen [1999] HCA 46
Citation 13 (Para 10)

…icative sentence to 11 years to allow for his “AB[7] type cooperation”. The judge did not misapply s 161R. [7]A reference to AB v The Queen (1999) 198 CLR 111.…
Postiglione v the Queen [1997] HCA 26
Citation 14

…sidered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v PBH [2021] QCA 38, followed COUNSEL: S Keim SC, with B J Power, for the applicant P J McCarthy QC for the respondent SOLICITORS: Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent…
Lowe v R [1984] HCA 46
Citation 15

…s 161R, s 161S Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v PBH [2021] QCA 38, followed COUNSEL: S Keim SC, with B J Power, for the applicant P J McCarthy QC for the respondent SOLICITORS: Guest Lawyers for the applicant…

Legislation Cited

Penalties and Sentences Act 1992 (Qld) 13A, 161A, 161P, 161Q
5 mentions (from Para 2)
Corrective Services Act 2006 (Qld) 182(2A)
1 mention (from Para 3)
Penalties and Sentence Act 1992 (Qld)
1 mention

CITATION:	R v TAS [2021] QCA 49
PARTIES:	R v TAS (applicant)
FILE NO/S:	CA No 323 of 2019 SC No 213 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 28 November 2019 (Dalton J)
DELIVERED ON:	19 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2020
JUDGES:	Morrison and McMurdo JJA and North J
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed. 3. Vary the sentence imposed for count one on the indictment, by substituting a term of nine years’ imprisonment, setting aside the declaration of the commission of a serious violent offence, and ordering that the applicant be eligible for parole on 10 June 2025.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – INTERPRETATION OF SENTENCING PROVISIONS – where the applicant pleaded guilty to trafficking dangerous drugs – where the applicant pleaded guilty to the circumstance of aggravation that he was a participant in a criminal organisation within the meaning of s 161P of the Penalties and Sentences Act 1992 (Qld) – where s 161R of the Penalties and Sentence Act 1992 (Qld) was engaged – where the applicant cooperated with authorities and gave an undertaking to cooperate in future, engaging s 161S of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge sentenced the applicant in open court and gave an indicative sentence in closed court pursuant to the procedure in s 13A of the Penalties and Sentences Act 1992 (Qld) – whether the indicative sentence must include the “mandatory component” required by s 161R – whether s 161S wholly displaces the operation of s 161R – whether the ultimate sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant couriered drugs and cash for a criminal organisation – where the applicant was not a drug user – where the applicant trafficked wholly for financial reasons – where the applicant trafficked for a period of three years and eight months – where the applicant was a trusted member of the criminal organisation – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the sentencing judge halved what would have been the sentence but for applicant’s cooperation – whether the reduction was so inadequate that it must be inferred that the judge made some error CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – RESPONSE TO CHARGES – CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES – where the applicant cooperated with authorities and gave an undertaking to cooperate in the future – where the applicant disclosed previous offending which did not form part of the indictment – where the applicant secured an indemnity from prosecution for the previous offending – where the sentencing judge considered the indemnity from prosecution – whether the sentencing judge erred in holding that a partial indemnity against prosecution was…