McMurdo P, Muir and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Leave to appeal is granted.
2. Appeal allowed to the extent of varying the parole eligibility date from 1 November 2012 to 26 April 2012.
3. Direct that the primary court order sheet be amended to change the starting date of the applicant’s pre-sentence custody from 25 August 2008 to 24 August 2008.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where applicant pleaded guilty to one count of trafficking in methylamphetamine, eight counts of supply, two counts of possession, two counts of assaulting a police officer and twelve summary offences – where applicant’s effective total sentence was eight years with eligibility for parole after three years and two months – whether totality principle should have dictated a lower sentence – whether recommendation for parole eligibility after three years and two months adequately reflected guilty plea – whether sentence manifestly excessive
P E Smith for the applicant M B Lehane for the respondent
SOLICITORS:
A W Bale & Son Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: The application for leave to appeal against sentence should be granted and the appeal allowed to the extent of varying the parole eligibility date from 1 November 2012 to 26 April 2012. I agree with White JA’s reasons and proposed orders.
MUIR JA: I agree with the reasons of White JA and with her proposed orders.
WHITE JA: The applicant has applied for leave to appeal against a sentence of eight years imprisonment with a parole eligibility date after serving three years and two months.
On 15 December 2009 the applicant pleaded guilty to one count of unlawfully trafficking in a dangerous drug between 28 January 2008 and 24 April 2008 at Brisbane, eight counts of supply of a dangerous drug, and one count of possession of a dangerous drug. In each…
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.
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Details
AGLC
R v Ungvari [2010] QCA 134
Case
[2010] QCA 134
Decision Date
CaseChat Overview and Summary
The appeal by the applicant against his sentence was heard by the Court of Criminal Appeal in Australia. The applicant had pleaded guilty to a significant number of drug and assault-related offences. The primary court imposed a total sentence of eight years imprisonment with eligibility for parole after three years and two months. The applicant challenged the sentence on the grounds that it was manifestly excessive or inadequate.
The legal issues before the court were whether the totality principle should have dictated a lower sentence, and whether the recommendation for parole eligibility adequately reflected the applicant's guilty plea. The court considered the principle of totality, which requires the aggregate sentence to be proportionate to the overall criminality. The court also considered whether the parole eligibility date was appropriate, given the applicant's early guilty plea.
The court found that the sentence was indeed manifestly excessive when considering the totality principle. The court noted that the primary judge had not sufficiently considered the effect of the applicant's early guilty plea. The court accepted that the parole eligibility date did not adequately reflect the applicant's early guilty plea. The court granted leave to appeal, allowed the appeal to the extent of varying the parole eligibility date, and directed that the primary court order sheet be amended to change the starting date of the applicant's pre-sentence custody.
Orders
Orders of the court
1. Leave to appeal is granted.
2. Appeal allowed to the extent of varying the parole eligibility date from 1 November 2012 to 26 April 2012.
3. Direct that the primary court order sheet be amended to change the starting date of the applicant’s pre-sentence custody from 25 August 2008 to 24 August 2008.