R v Volante - [2021] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

R v Volante [2021] QCA 109

PARTIES:

R
v
VOLANTE, Liam Henry Morris
(applicant)

FILE NO/S:

CA No 206 of 2020
DC No 387 of 2020
DC No 388 of 2020
DC No 475 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 21 September 2020 (Clare SC DCJ)

DELIVERED ON:

Date of Orders: 21 April 2021
Date of Publication of Reasons: 18 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2021

JUDGES:

Sofronoff P and McMurdo JA and Ryan J

ORDERS:

Orders delivered: 21 April 2021

1.   Leave to appeal against sentence is granted.

2.   Appeal allowed.

3.   The sentence on count 1 is set aside.

4.   The sentence on count 1 is five years’ imprisonment.

5.   The parole eligibility date of 18 October 2021 is set aside.

6.   All sentences are to be suspended after the applicant has served 22 months’ imprisonment, with an operational period of five years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to offending which included a burglary, an assault, two woundings and drug offences – where the applicant was sentenced to six and a half years’ imprisonment – where the sentencing judge made a factual error in imposing sentence – where the Court of Appeal resentenced – where the applicant is a young man with a concerning criminal history – where deportation of the applicant is almost inevitable and the potential for meaningful parole supervision is illusory – where there is uncertainty about time the applicant will spend in immigration detention prior to his deportation – whether the sentence imposed by the sentencing judge was appropriate having regard to the applicant’s offending globally

R v Amato[2013] QCA 158, cited
R v Broome[2015] QCA 119, cited
R v Granato[2006] QCA 25, cited
R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited
R v Nolan[2009] QCA 129, cited
R v Sokol[2011] QCA 20, cited

COUNSEL:

C Smith for the applicant
D Nardone for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Ryan J.
McMURDO JA: I agree with Ryan J.
RYAN J: The applicant pleaded guilty to offending which included a home invasion, an assault, woundings and drug offences. The primary judge sentenced the applicant to six and a half years’ imprisonment, with parole eligibility at the one-third mark, for his criminality overall. Her Honour declared that the applicant’s 339 days of pre-sentence custody were to be taken as time already served under the sentence.
The applicant applied for leave to appeal against sentence. On 21 April 2021, this Court granted leave; allowed the applicant’s appeal; and made orders which had the effect of…

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 Volante

Details

AGLC: R v Volante [2021] QCA 109
Case: [2021] QCA 109
Decision Date: 18 May 2021

CaseChat Overview and Summary

The appellant, Volante, appealed against his sentence following his conviction for multiple offences including burglary, assault, wounding, and drug offences. The case was heard in the Queensland Court of Appeal. The primary legal issue was whether the sentence imposed by the sentencing judge was appropriate, considering the appellant's criminal history and the likelihood of his deportation. The appellant argued that his sentence was manifestly excessive given his inevitable deportation and the limited potential for meaningful parole supervision. The Court of Appeal had to determine if the original sentence was appropriate in light of these circumstances.

The Court of Appeal found that the sentencing judge had made a factual error in imposing the sentence. The Court considered the appellant's criminal history and the nature of his offending, which was described as serious and violent. The Court noted the appellant's lack of cooperation with authorities and his failure to be interviewed about his offending. The Court also highlighted the appellant's immigration status, noting that he was a New Zealand citizen and subject to mandatory deportation if sentenced to more than 12 months' imprisonment. The Court concluded that the original sentence was not appropriate, given these factors, and resentenced the appellant accordingly.

The Court of Appeal granted the appellant leave to appeal against his sentence and allowed the appeal. The original sentence of six and a half years' imprisonment was set aside, and a new sentence of five years' imprisonment was imposed. The parole eligibility date was also set aside, and all sentences were to be suspended after the appellant had served 22 months' imprisonment, with an operational period of five years. This decision took into account the appellant's inevitable deportation and the limited potential for meaningful parole supervision in his case.

Orders

Orders of the court

Orders delivered: 21 April 2021

1. Leave to appeal against sentence is granted.

2. Appeal allowed.

3. The sentence on count 1 is set aside.

4. The sentence on count 1 is five years’ imprisonment.

5. The parole eligibility date of 18 October 2021 is set aside.

6. All sentences are to be suspended after the applicant has served 22 months’ imprisonment, with an operational period of five years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Beyond pleading guilty, the applicant did not otherwise co-operate with authorities. He declined to be interviewed about any of his offending. He was remanded in custody.Immigration status The applicant is a New Zealand citizen. The primary judge was reminded that, in accordance with section 501 of the Migration Act 1958 (Cth), if the applicant were sentenced to 12 months’ imprisonment or more, he would fail the character test and be subject to mandatory deportation. The sentence in contemplation in this matter was a sentence of more than three years’ imprisonment. A sentencing court cannot, in the case of a sentence over three years’ imprisonment, fix the date upon which an offender is to be released on parole. A sentencing court may only fix the date upon which the offender is eligible to be released on parole. The timing of the offender’s release on parole is then a matter for the parole authorities. As was recognised in R v Shrestha (1991) 173 CLR 48, which was considered in R v Abdi [2016] QCA 298, the likelihood of deportation is relevant to the parole authority’s decision to release an offender on parole.Submissions on penalty made at first instance At first instance, the prosecutor observed that the applicant’s pleas of guilty and his youth were circumstances that operated “in his favour”. However, his offending was serious and aggravated by his prior convictions and the fact that it commenced within six (sic) days of the expiration of his parole supervision. The home invasion was planned. It was instigated by the applicant and only ceased when Chatto intervened. The others in the house at the time included an eight month old baby. The applicant was violent again, in a premediated way, hours later. The prosecutor submitted that an appropriate head sentence fell between four and five years’ imprisonment, approaching the matter globally. The prosecutor referred to R v Leu; R v Togia [2008] QCA 201; R v Amato [2013] QCA 158 and R v Sokol [2011] QCA 20 in support of her submission. Defence counsel asked the primary judge not to impose a “crushing” sentence. He asked her Honour to proceed on the basis that there was hope for the applicant’s rehabilitation. He reminded the primary judge that the applicant would be inevitably deported. He submitted that a head sentence between four and five years’ imprisonment was appropriate and asked the primary judge to suspend it. He acknowledged that that would mean that the applicant would not be supervised in Australia.Sentencing at first instance During the prosecutor’s submissions the primary judge expressed the view that the applicant’s offending was “all about thuggery”. Her Honour found the flavour of the applicant’s offending “quite chilling”. Her Honour expressly signalled to defence counsel that she saw differences between the authorities to which the prosecutor referred and the applicant’s case. She told defence counsel that, “at the moment”, she considered the appropriate sentence to fall between six and seven years’ imprisonment. She invited him to address her further.

CITATION:	R v Volante [2021] QCA 109
PARTIES:	R v VOLANTE, Liam Henry Morris (applicant)
FILE NO/S:	CA No 206 of 2020 DC No 387 of 2020 DC No 388 of 2020 DC No 475 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 21 September 2020 (Clare SC DCJ)
DELIVERED ON:	Date of Orders: 21 April 2021 Date of Publication of Reasons: 18 May 2021
DELIVERED AT:	Brisbane
HEARING DATE:	21 April 2021
JUDGES:	Sofronoff P and McMurdo JA and Ryan J
ORDERS:	Orders delivered: 21 April 2021 1. Leave to appeal against sentence is granted. 2. Appeal allowed. 3. The sentence on count 1 is set aside. 4. The sentence on count 1 is five years’ imprisonment. 5. The parole eligibility date of 18 October 2021 is set aside. 6. All sentences are to be suspended after the applicant has served 22 months’ imprisonment, with an operational period of five years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to offending which included a burglary, an assault, two woundings and drug offences – where the applicant was sentenced to six and a half years’ imprisonment – where the sentencing judge made a factual error in imposing sentence – where the Court of Appeal resentenced – where the applicant is a young man with a concerning criminal history – where deportation of the applicant is almost inevitable and the potential for meaningful parole supervision is illusory – where there is uncertainty about time the applicant will spend in immigration detention prior to his deportation – whether the sentence imposed by the sentencing judge was appropriate having regard to the applicant’s offending globally R v Amato[2013] QCA 158, cited R v Broome[2015] QCA 119, cited R v Granato[2006] QCA 25, cited R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited R v Nolan[2009] QCA 129, cited R v Sokol[2011] QCA 20, cited
COUNSEL:	C Smith for the applicant D Nardone for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent