R v UE

Case [2016] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:

R v UE [2016] QCA 58

PARTIES:

R
v
UE
(applicant)

FILE NO/S:

CA No 55 of 2015
SC No 231 of 2014
SC No 372 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Brisbane – Date of Sentence: 23 March 2015

DELIVERED ON:

11 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2015

JUDGES:

Morrison and Philippides JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence should be refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – OTHER MATTERS – where the applicant pleaded guilty to one count of importing a marketable quantity of a border controlled drug – where the applicant was sentenced to six years imprisonment with a parole release date after serving three years and four months – where the applicant submitted the sentencing judge erred in treating the risk of deportation as an irrelevant consideration – where the applicant submitted he would suffer hardship if he were to be deported – whether deportation is a relevant consideration in mitigation – whether it was demonstrated that deportation would be a hardship upon the applicant – whether sentencing judge failed to consider effect of deportation

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of importing a marketable quantity of a border controlled drug – where the applicant was sentenced to six years imprisonment with a parole release date after serving three years and four months – where the applicant submitted the sentence was not imposed according to law – where the sentencing judge indicated methodology for reducing the sentence pursuant to the Crimes Act 1914 (Cth) s 21E in camera – where the applicant submitted the sentencing judge erred in not stating the s 21E reduction in pronouncing sentence – whether the sentencing discretion miscarried for non-compliance with s 21E

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of importing a marketable quantity of a border controlled drug – where the applicant was sentenced to six years imprisonment with a parole release date after serving three years and four months – where the applicant was entitled to a discount pursuant to the s 21E of the Crimes Act 1914 (Cth) – where the applicant was more than a bare courier – where the applicant pleaded guilty – where the applicant submitted the sentence was manifestly excessive – whether the sentence was manifestly excessive

Crimes Act 1914 (Cth), s 21E
Criminal Code (Cth), s 307.2(1)
Migration Act 1958 (Cth), s 501(3A), s 501(6)(a), s 501(7), s 501CA

Director of Public Prosecutions (Cth) v Peng

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AGLC
R v UE [2016] QCA 58
Case
[2016] QCA 58
Decision Date

CaseChat Overview and Summary

The applicant in this case, a Canadian citizen who had lived in Australia for a decade, was sentenced to six years in prison for importing a significant quantity of methamphetamine. He appealed against the sentence, arguing that the sentencing judge had erred in several respects. Firstly, the applicant contended that the sentencing judge had failed to consider the hardship that would result from his deportation, treating this factor as irrelevant. Secondly, he argued that the sentencing judge had not properly applied a discount for his early guilty plea as required by the Crimes Act 1914 (Cth). Lastly, the applicant claimed that the sentence was manifestly excessive.

The court examined the applicant's arguments, beginning with the consideration of deportation. The applicant argued that deportation would result in significant hardship given his long-term residence in Australia, a point the sentencing judge had seemingly overlooked. The court found that while the sentencing judge had briefly mentioned the risk of deportation, he did not adequately consider its implications. The risk of deportation, if it resulted in the applicant being separated from his established life in Australia, was indeed a relevant factor that should have been considered in mitigating the sentence. The court held that the sentencing judge's failure to adequately consider this factor constituted an error.

Furthermore, the court reviewed whether the sentencing judge correctly applied the discount for the applicant's early guilty plea as required by the Crimes Act 1914 (Cth). The applicant argued that the sentencing judge had not stated this discount explicitly, which was necessary for transparency and compliance with legal requirements. However, the court found that the sentencing judge had indeed followed the required methodology in applying this discount, albeit not explicitly stating it in his remarks.

Finally, the court assessed whether the sentence was manifestly excessive. The applicant argued that given his significant cooperation and the discount for his early guilty plea, the sentence was excessive. However, considering the nature and circumstances of the offence, the court found that the sentence was within an acceptable range and did not constitute an error of law or manifest excess.

In conclusion, the application for leave to appeal against the sentence was refused. The court found that while there was an error in the consideration of the deportation factor, it did not warrant setting aside the sentence. The sentence was deemed appropriate considering the circumstances of the case.

Orders

Orders of the court

The application for leave to appeal against sentence should be refused.

Background

Background to the litigation

It is convenient to address the grounds relating to specific error before turning to the ground that the sentence was manifestly excessive.Background The applicant was 29 years old when the offence was committed and 31 when sentenced. He is a Canadian citizen but at the time of the offending had lived and worked in Australia for some 10 years, having first come to Brisbane to study at a university. The offence concerned the importation of 629.7 grams of pure methamphetamine at a level of purity of 63.1 per cent, having an estimated wholesale value of between $100,000 and $165,000. The applicant was brought into the importation by another person. He was an investor in a legitimate business that the applicant was trying to establish. Before the offending, the applicant had moved into that person’s house, following the breakdown of the applicant’s marriage. In November 2012, the applicant travelled to Malaysia and helped to deliver the relevant package to a DHL office for it to be sent to Brisbane. The consignment was addressed to a fictitious name. The applicant was unaware that Customs had intercepted the package and replaced the contents with an inert substance. The applicant proceeded to help another person to pick up the package from a motel in Brisbane and was arrested shortly afterwards. In sentencing the applicant, the sentencing judge accepted the prosecution submission that the applicant’s role was more than that of a bare courier or passive recipient. His Honour found that the applicant’s role was significant. A measure of planning was necessarily involved in the applicant’s role and he had played an important part in the facilitation of the actual importation itself. Further, the applicant was engaged in the importation for financial gain. The applicant was sentenced on the basis that he did not know the precise nature of the illicit substance imported but was well aware of the risks that it might indeed be methamphetamine (that is, he was reckless as to its identity). The sentencing judge referred to the absence of a criminal history but noted that it was not suggested on behalf of the applicant that it should be inferred that he had not previously committed a serious criminal offence before. His Honour also had regard to the applicant’s timely plea and other extensive cooperation which his Honour commented was much to the applicant’s credit. Although he had initially declined to be interviewed when first arrested, the applicant engaged with the Australian Federal Police three months later and provided a statement. The matter proceeded by full hand up committal and, following amendment of the indictment, the applicant entered a plea of guilty.[1] The applicant’s cooperation extended to the giving of an undertaking pursuant to s 21E of the Crimes Act 1914 (Cth).The learned sentencing judge erred in treating the risk of deportation as an irrelevant consideration on sentencing(a)Erroneous approach to consideration of the risk of deportation?[1]The history of the matter is set out in full by counsel for the application on the sentencing.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Although he had initially declined to be interviewed when first arrested, the applicant engaged with the Australian Federal Police three months later and provided a statement. The matter proceeded by full hand up committal and, following amendment of the indictment, the applicant entered a plea of guilty.[1] The applicant’s cooperation extended to the giving of an undertaking pursuant to s 21E of the Crimes Act 1914 (Cth).The learned sentencing judge erred in treating the risk of deportation as an irrelevant consideration on sentencing(a)Erroneous approach to consideration of the risk of deportation?[1]The history of the matter is set out in full by counsel for the application on the sentencing. It was contended on behalf of the applicant that the sentencing judge appeared to have rejected a submission that the likelihood of the applicant’s deportation at the end of the custodial part of his sentence was a relevant consideration. That was said to be apparent from certain exchanges between his Honour and counsel during the sentencing submissions and the fact that the only reference to the topic in his Honour’s sentencing remarks was the observation that the applicant was “a foreigner likely to suffer deportation at the conclusion” of his sentence. This submission was said to be strengthened by his Honour adopting the following passage of Wood CJ at CL in R v Klein:[2]“For foreign offenders, the fact of their separation from their homeland and family is of very little relevance. Those who choose to run the risk of bringing drugs into this country must accept the consequences of being imprisoned here, with all the disadvantages entailed.”[2](2001) 121 A Crim R 90 at 95. The applicant contended that, notwithstanding the sentencing judge’s reference to deportation, his Honour treated that matter as irrelevant or failed to give it any consideration. To the extent that reliance is placed on his Honour’s reference to Klein as indicative of error in failing to consider the factor of deportation, it does not assist the applicant. It was submitted before this Court that separation from Canada was no hardship given that the applicant had lived in Australia for 10 years, so the reference to Klein was not applicable. However, the reference to Klein simply reflected submissions made by both counsel on the relevance in the sentencing process of the difficulties experienced by foreign offenders in Australia. The implicit criticism of the sentencing judge’s reference to Klein is unwarranted. The primary submission was that the applicant’s deportation was relevant for two reasons. Firstly, because it had the punishing effect of removing the applicant from his home and life in Australia of 10 years. Secondly, it was submitted that any discount that was applied to the head sentence for the purposes of s 21E gave the applicant no practical benefit, given that he would be deported once paroled. Thus, the benefit of the s 21E factor ought to have been visited entirely on the non-parole period. Given that the applicant had lived in Australia for 10 years at the time of sentence, being deported was a “serious punishing consequence”. The learned sentencing judge failed to take that consequence into account, and, accordingly, failed to take into account a factor that would have reduced the sentence and non-parole period imposed.