Qld set to overturn Barbaro & Zirilli v The Queen [2014]

Statue of justiceBarbaro & Zirilli is a 2014 High Court Decision which effectively brought to an end the practice of Prosecutors providing the Court with an appropriate sentencing range.  Until 2014 it was usual for the prosecution to provide the Court with assistance not only as to the facts of a sentence but also with a range that the Crown considered appropriate for the offending.

The case itself involved conspiring to traffic a commercial quantity of MDMA, trafficking a commercial quantity of MDMA and attempting to possess a commercial quantity of cocaine.

The accused men, Mr Barbaro and Mr Zirilli agreed to enter pleas of guilty following discussions between their lawyers and the prosecution.  During those discussions, the prosecution expressed its view as to the range of sentences that might be imposed on each applicant. The prosecution told the applicants’ lawyers that the “sentencing range”, in Mr Barbaro’s case, was a head sentence of 32 to 37 years with a non-parole period of 24 to 28 years and, in Mr Zirilli’s case, a head sentence of 21 to 25 years with a non-parole period of 16 to 19 years.

At the sentencing hearing, Justice King, advised that she would not receive from either party submissions about sentencing range.  The prosecution, in those circumstances did not make any submission about what range of sentences could be imposed.  Mr Barbaro was sentenced to life imprisonment with a non‑parole period of 30 years.  Mr Zirilli was sentenced to 26 years’ imprisonment with a non‑parole period of 18 years.

The High Court dismissed both appeals.  The Court held, by majority, that it is neither the role nor the duty of the prosecution to proffer some statement of the bounds within which a sentence may be imposed.  It is for the sentencing judge alone to decide what sentence will be imposed. As a consequence the practice of providing the Sentencing Court with assistance as to the sentencing range came to an end.

The Queensland Government has indicated that it will introduce legislation into Parliament that will reinstate the ability of a court to receive submissions from both the prosecutor and defence on what they considered was the appropriate sentence or range of sentence that should be imposed.

The proposed legislation will return proceedings to the situation that existed prior to the High Court decision in Barbaro & Zirilli v Queen [2014] and will improve consistency in sentencing, as well as assist in the efficient running of courtrooms.

Increased penalties for QLD Stock Offences

stock penaltiesThe minimum fines for stock offences have increased from $200 to $1100 per animal or the value of the animal, whichever is the higher amount.

Other amendments to the legislation will benefit investigating authorities and primary producers by:

  1. Empowering police to effectively investigate stock crime by extending stock-related search warrant durations from 7 to 21 days
  2. Modernising evidentiary requirements in stock offence prosecutions
  3. Maintaining the ability of police to immediately return cattle to victims of crime where there is no dispute as to ownership
  4. Streamlining the disposal process where there is a dispute as to ownership, allowing the stock to be sold pending an order from the Court to distribute the funds at the conclusion of proceedings
  5. Under the new laws, the Court can order the return of cattle when stock has strayed onto a person’s property and the land owner refuses to move the cattle,” he said.

If you are being charged with a stock offence and require legal representation, call Gatenby Criminal Law on (07) 5580 0120 or contact us immediately.

Fail to Appear – What happens

Jail barsIt an offence to fail to appear in court in accordance with a bail undertaking. The court has the power to revoke the bail undertaking, forfeit any sureties and issue a warrant for your arrest.

What if I had a really good reason for failing to appear?

The Court requires a person to show cause why they have failed to appear and in some exceptional cases, the court will accept a lawful excuse and discharge the person. In showing cause the person needs to establish that they were unable to attend court.  An example might be that the accused person was in hospital with a reasonable medical condition that prevented them from appearing.

The court will not only require you to show that you had reasonable cause for failing to surrender into custody but that you surrendered into custody as soon after the time as is reasonably practicable.

What do I do if I have failed to appear?

The court will generally issue a warrant once a person fails to appear.  This warrant will be provided to the police in an effort to locate you and have you brought before the Court.

The preferable approach is for you to surrender yourself to police rather than have them come looking for you.  The Court will more readily accept that you made a mistake and were not trying to abscond if you hand yourself in.

You will be arrested by police for the offence of fail to appear and will be offered to opportunity to provide a reason.

What will happen to me after I surrender myself to the police?

You will be held in custody and produced to the court that issued the warrant.

Upon production to the court they shall call upon you to prove why you should not be convicted of an offence against the section. If you are unable to show cause you will be sentenced and you will need to reapply for bail on the substantive offence.

What are the penalties for failing to appear?

In some circumstances, it is possible to be found guilty of the offence and not have a conviction recorded. However many courts treat the offence as serious and can impose periods of actual imprisonment.

Regardless of the penalty, a conviction for failing to appear can have an impact on assessing future applications for bail.  A conviction may persuade the court that an accused is an unacceptable risk of failing to appear and result in a refusal of bail.   It may even result in the revocation of bail and forfeiture of monies pledged by a surety.

It is imperative that you surrender yourself as expeditiously as possible and seek professional advice from an experienced criminal lawyer who specialises in bail matters.

BANNING ORDERS – WHAT ARE THEY AND CAN I DEFEND THEM?

BANNING ORDER
A banning order is a order that prohibits an offender, until a stated date, from doing or attempting to do any of the following:
  1. Entering or remaining in a stated licensed premises ; or a stated class of licensed premises;
  2. Entering or remaining in, during stated hours, a stated area that is a particular distance from the licensed premises;
  3. Attending or remaining at a stated event, to be held in a public place, at which liquor will be sold for consumption.
Banning orders can prohibit entry to stated places.

The Court has a wide discretion in relation to the terms of the Banning Order. It may for example prohibit a person from entering or remaining in, between hours of 10pm and 6am, in an area that is within 10 metres of a stated licensed premises. In practice such orders are generally made in relation to a stated “drink safe precinct” under the Liquor Act. The Court can impose an Order, with such conditions as it considers necessary, upon application by the Prosecution where :

  1. The offender has been convicted of an offence that involves that use, threatened use or attempted use of unlawful violence to a person or property.
  2. The offence was committed in licensed premises or in a public place in the vicinity of licensed premises.
The prosecution needs to satisfy the Court that unless the Order is made the Respondent would pose an unacceptable risk to :
  1. The good order of licensed premises and areas in the vicinity of licensed premises; or
  2. The safety and welfare of persons attending licensed premises and areas in the vicinity of licensed premises.
In considering the risk the Court must have regard to all the circumstances of the case, including for example the following :
  1. Whether the respondent has been the subject of another banning order under this legislation, section 11(3) of the Bail Act or a Civil Banning Order imposed under section 173X of theLiquor Act;
  2. The respondent’s Criminal History;
  3. The offenders person circumstances and the likely effect of the order on those circumstances;
  4. Anything else that the Court considers relevant

 

The Court has discretion to impose the banning order for not more than 12 months. Where the respondent is sentenced to a period of imprisonment the banning order commences at the conclusion of the sentence. Those facing a banning order need to consider whether the unacceptable risk exists for the whole of the 12 month period or whether it is probable that such risk will be reduced within a shortened time frame.
The banning order may not restrict a respondent from the entering or remaining within the respondents residence, place of employment or place of education. In addition the order must not cause undue hardship on the offender or the offenders family. It is incumbent upon the respondent to establish such hardship.
The legislation also envisages that the order will not be breached were the person is utilising a mode of transport required to be used by the offender. The order must describe the mode of transport in sufficient detail to identify the mode of the transport and state that the respondent is not stopped from entering or remaining in the mode of transport.
While the legislation is wide in its discretion, those who are respondents to an application need to carefully consider the implications of the order upon their ability to enter the particular location. If the unacceptable risk threshold test is reached they need to consider whether undue hardship will be caused and have evidence of such hardship, or in the case of transport requirements, particulars of the mode of transport.
A banning order is not trivial, a contravention carries a maximum penalty of $4,000.00 or 12 months imprisonment.  We recommend that anybody who is the subject of a Banning Order Application, seeks advice from an experienced Criminal Lawyer, before appearing in Court.

COMMONWEALTH PENALTY UNIT

On 28 November 2012, the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 received royal assent.

Penalty Increase

This act increases the value of a penalty unit from $110 to $170.00 and requires the value of a penalty unit to be reviewed every three (3) years. The value of a penalty unit has not increased since 1997. The change affects the value of a penalty unit in most Commonwealth laws, including the Taxation Administration Act 1953.

The new value of a penalty unit applies where the matter at giving rise to the penalty occurs on or after 28 December 2012.

SENTENCING CONSIDERATIONS

It is an important sentencing principle that parity exist in sentences imposed for like offences.  In a diverse state such a Queensland, with three levels of Courts; Magistrates, District and Supreme, there needs to be an overriding set of guidelines to ensure that sentences imposed upon offenders are consistent.  The Penalties and Sentences Act sets out the parameters within which the courts must operate.

The legislation does this by setting out the purpose of imposing sentences and then establishes the principles that the Court is to apply in achieving those purposes.

The purpose of imposing a sentence can be classified as one or more of the following:

  1. To punish the offender to an extent or in a way that is just in all the circumstances;
  2. To provide conditions will help the offender to be rehabilitated;
  3. Deterrence, both personal and general;
  4. Denunciation of the offending conduct;
  5. Protection of the Queensland community from the offender;

In most non-violent offences the starting point in sentencing is that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.

The Court must also have regard to the maximum and any minimum penalty prescribed for the offence and how serious the offence was, including any physical, mental or emotional harm done to a victim.  Particular regard is to be had to the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence.  The court should also have regard to the prevalence of the offence.

Consideration is also had to the extent to which the offender is to blame for the offence and the presence of any aggravating or mitigating factors such as any damage, injury or loss caused by the offender.

Matters particular to the accused are also relevant such as the offender’s:

  1. character,
  2. age;
  3. intellectual capacity;
  4. assistance given to law enforcement agencies in the investigation of the offence or other offences.
  5. time spent in custody awaiting sentence;
  6. sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing;
  7. compliance with previous community based orders
  8. attendance at a rehabilitation, treatment or other intervention program or course while on bail.

Each of these principles is to be taken into account in determining the appropriate sentence.  What often becomes difficult for the sentencing court is to balancing the various competing interests.  An experienced criminal lawyer is able to highlight the positive features, and mitigate the sentence imposed.

OFFENDER LEVY

Defendants found guilty of offences in the Supreme, District and Magistrates Courts will pay an offender levy with recent amendments to the Penalties and Sentences Act 1992 (“the Act”).

The levy will apply as follows:

  • Supreme Court       $300.00
  • District Court          $300.00
  • Magistrates Court    $100.00

This levy will apply to all adult offenders; there are no exceptions regardless of the nature of the offence or the offender’s personal circumstances.

The offender levy is automatically imposed at the conclusion of sentencing as an administrative levy and is in addition to any other sentence imposed.

The levy must not form part of the sentence with the court prohibited under section 48 of the Act from taking the levy into account when considering the financial circumstances of an offender. Section 9 of the Act also precludes the court from considering the levy when imposing its sentence

The levy is payable per sentencing event regardless of the number of convictions or whether or not a conviction is recorded.

Defendants will need to be vigilant to ensure that summary matters associated with more serious offences are resolved at the same time. The practice of clearing up minor offences following sentence in a superior court would not seem to meet the definition of a sentencing proceeding and would attract a second offender levy.

No further levy is payable by the offender where the Court is called upon to resentence by:

  1. Substituting another sentence;
  2. Further deal with the offender including the making of a further order; or
  3. Confirming, varying or amending the sentence or order made on the original sentence.

If upon appeal all convictions that resulted in the imposition of the offender levy are quashed the proper officer must refund to the offender any amount paid to the proper officer for the offender levy.

The act is retrospective; that is the relevant date is conviction and not the offence date.  Therefore those convicted of an offence after 21 August 2012 will be required to pay the offender levy in addition to any other sentence imposed.

The Court is required to pass on the offender’s details to the State Penalties Enforcement Register (SPER). The proper officer of SPER is then required to collect the levy in the usual course of its business.  Caution will need to be exercised, as the recording of incorrect particulars with SPER will result in a default.  SPER has far reaching powers including the ability to suspend a persons Queensland Drivers Licence.

The Penalties and Sentences and Other Legislation Amendment Bill 2012 also included an increase to the value of the penalty unit from $100 to $110.

The penalty unit is the basic monetary value for most fines and penalty infringement notices issued by courts, police and other Queensland agencies.