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R v Bryan[2022] QCA 68

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bryan [2022] QCA 68

PARTIES:

R

v

BRYAN, Benjamin James

(applicant)

FILE NO/S:

CA No 285 of 2021

SC No 1100 of 2021

SC No 1361 of 2021

SC No 1366 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 7 October 2021 (Dalton J)

DELIVERED ON:

Date of Order: 12 April 2022

Date of Publication of Reasons: 10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2022

JUDGES:

Sofronoff P and Morrison JA and Boddice J

ORDER:

Date of Order: 12 April 2022

The application is dismissed.

CATCHWORDS:

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 trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of two grams, one count of possessing property obtained from trafficking, one count of attempting to pervert the course of justice and one count of extortion – where the applicant was sentenced to five years’ imprisonment for the drug offending and two years’ imprisonment for the extortion charge and perverting the course of justice charge – where those sentences were to be served cumulatively on each other and cumulatively on a 12 month sentence imposed by the Magistrates Court – where parole eligibility was set at 7 June 2023 – where the applicant had an extensive criminal history in Queensland, Victoria and the Northern Territory – where the applicant has previous convictions in Victoria for trafficking in dangerous drugs – where the trafficking occurred over a 10 week period at street level – where the applicant submits that the sentence imposed fails to give sufficient allowance for the principles of totality – where the applicant submits that the sentencing judge erred in setting the parole eligibility date – whether there has been a misapplication of principle – whether the sentence imposed was manifestly excessive

COUNSEL:

A M Hoare for the applicant

M Gawrych for the respondent

SOLICITORS:

Ashkan Tai Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  For the reasons given by Boddice J, I joined in the making of the Court’s order on 12 April 2022.
  2. [2]
    MORRISON JA:  I have had the benefit of reading the reasons prepared by Boddice J.  They reflect my reasons for joining in the order made on 12 April 2022.
  3. [3]
    BODDICE J:  On 7 October 2021, the applicant pleaded guilty to one count of trafficking in the dangerous drug methylamphetamine, one count of possession of the dangerous drug methylamphetamine in a quantity that exceeded two grams, one count of possessing a sum of money obtained from trafficking in a dangerous drug and, by way of ex officio indictment, one count of attempting to pervert the course of justice and one count of extortion.
  4. [4]
    The applicant was sentenced to effective head sentences of five years’ imprisonment in respect of the drug offending and two years’ imprisonment in respect of the counts on the ex officio indictment.  Those sentences were to be served cumulatively on each other and cumulatively on 12 months’ imprisonment imposed in the Magistrates Court at Redcliffe on 26 November 2019 for property related offences.  A parole eligibility date was fixed at 7 June 2023.
  5. [5]
    The applicant sought leave to appeal his sentences.  The sole ground of appeal, should leave be granted, was that the sentences were manifestly excessive.
  6. [6]
    On 12 April 2022, leave to appeal was refused.  These are my reasons for refusing leave to appeal.

Background

  1. [7]
    The applicant was born in 1984.  He has lengthy criminal histories in Queensland, Victoria and the Northern Territory.  His previous convictions in Victoria include trafficking in dangerous drugs.
  2. [8]
    The applicant’s most recent conviction in Queensland was in the Magistrates Court at Redcliffe on 26 November 2019.  He was sentenced to 12 months’ imprisonment, with parole release fixed at 31 March 2020.

Offences

  1. [9]
    The applicant’s trafficking occurred over a 10 week period, when the applicant was on parole.  He had some 24 customers.  There were 75 transactions and 54 acts preparatory to transactions.  A sum of $70,000 was received by way of remuneration from his sales, which were at a street level, although the applicant was selling to persons whom he knew were on-selling to their own customers.
  2. [10]
    The remaining drug counts were properly seen as particulars of the trafficking count.  Accordingly, the applicant was convicted and not further punished in respect of those counts.  The applicant was also convicted and not further punished in relation to summary charges dealt with at the time of sentence.
  3. [11]
    The counts on the ex officio indictment related to events in which a complainant was viciously assaulted by a group of three men.  The applicant was not involved in that assault but, whilst in prison, procured someone to write a letter to the complainant threatening him and his young children.  It was properly described as “really nasty offending” in the context of a complainant who had already been the victim of a vicious assault.  The note called on the complainant to drop the criminal charges, as well as requesting him to leave a motor vehicle which belonged to one of the persons who had assaulted him outside his place of employment.
  4. [12]
    The applicant was aged 35 and 36 at the time of the commission of these offences.

Sentencing remarks

  1. [13]
    The sentencing Judge recorded that the applicant’s parole had been suspended on 17 July 2020 and that he had been returned to prison from 17 September 2020, a period a little over 12 months prior to sentence.  Only approximately four months of that period was served as a remand prisoner.
  2. [14]
    The sentencing Judge noted a submission that the applicant had been addicted to drugs from 2012, had completed some programs in prison and had had difficult circumstances in his childhood.  However, the sentencing Judge concluded that a sentence in the order of six years’ imprisonment would be justified for the trafficking count, having regard to the fact that it was committed on parole and his prior criminal history, but moderated that sentence down to five years’ imprisonment.  The sentences for the counts on the ex officio indictment of two years’ imprisonment were made concurrent with each other, but cumulative on that sentence and the sentence the applicant was serving pursuant to his conviction on 20 November 2019.

Submissions

  1. [15]
    The applicant submits that the overall sentences imposed did not give sufficient allowance for the principles of totality.  The setting of a parole eligibility after effectively two years produced an unjust result, rendering the period of imprisonment so crushing as to require appellate intervention.
  2. [16]
    In support of that submission, the applicant notes that the parole eligibility date was set at a period four months longer than that contended for by the Crown and eight months longer than that contended by the applicant.

Consideration

  1. [17]
    The seriousness of the applicant’s criminality, in the context of his appalling past criminal history, supported a conclusion that there was no substance in the applicant’s contentions. 
  2. [18]
    Whilst the sentencing Judge set a parole eligibility date beyond that contended for by the Crown, those contentions were but submissions.  It was ultimately a matter for the sentencing Judge to determine the parole eligibility date.
  3. [19]
    Further, in setting the parole eligibility date, the sentencing Judge had due regard to the criminality involved in two separate occasions of serious criminal conduct, committed by a mature offender, who had previous convictions for trafficking and who was on parole during the whole of the trafficking period.
  4. [20]
    Against that background, the setting of a parole eligibility date which had the effect of requiring the applicant to serve two years of an effective sentence of seven years’ imprisonment fell within a sound exercise of the sentencing discretion, even allowing for the time that the applicant had served in custody for earlier offending and the cooperation shown by his pleas of guilty.
  5. [21]
    The sentences imposed were not plainly unjust or unreasonable.  They did not evidence any misapplication of principle.  The applicant also has not identified any other misapplication of principle.
Close

Editorial Notes

  • Published Case Name:

    R v Bryan

  • Shortened Case Name:

    R v Bryan

  • MNC:

    [2022] QCA 68

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Boddice J

  • Date:

    10 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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