Connell v The Queen - [2019] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Connell v R [2019] NSWCCA 70
Hearing dates: 13 March 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Before: Macfarlan JA at [1]
Fullerton J at [2]
Bellew J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
Criminal Law – Appeal – Sentence – Parity principle – Whether applicant had a justifiable sense of grievance arising from the sentence imposed on co-offender – Where there were differentiating factors which justified the sentences which were imposed – No unjustified disparity

Criminal Law – Appeal – Sentence – Where applicant pleaded guilty to offences of supplying prohibited drugs and dealing with the proceeds of crime – Where the sentencing judge gave indicative sentences and imposed an aggregate sentence – Whether sentencing judge erred in not indicating that two of the sentences should be wholly concurrent – No general rule that determines whether sentences should be imposed concurrently or cumulatively – Issues of concurrence or cumulation to be determined by principles of totality and by a consideration of whether the sentence for one offence can comprehend and reflect the criminality of another
Criminal Law – Appeal – Sentence – Where applicant pleaded guilty to offences of supplying prohibited drugs and dealing with the proceeds of crime – Where the sentencing judge gave indicative sentences and imposed an aggregate sentence – No fixed principle that where an offender is sentenced for supplying prohibited drugs and dealing in the proceeds of crime wholly concurrent sentences must be imposed in each and every case – Observations as to the difficulty faced by an appellate court when it is asked to analyse issues of concurrence and accumulation in cases where an aggregate sentence is imposed – Ultimate question is whether the aggregate sentence imposed reflects the overall criminality of the offender
Cases Cited: Cahyadi v R [2007] NSWCCA 1
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
Jadron v R [2015] NSWCCA 217
Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Pizzimenti v R [2017] NSWCCA 231
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Gouliaditis (No 2) [2016] NSWDC 216
Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
Toksoz v R [2019] NSWCCA 10
Category: Principal judgment
Parties: Andrew James Connell – Applicant
Regina - Respondent
Representation:
Counsel:
P Lowe – Applicant
H Roberts – Respondent
Solicitors:
Tully and Chiper Lawyers – Applicant
C Hyland, Solicitor for Public Prosecutions – Respondent

File Number(s): 2014/246213
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 December 2017

Before:

His Honour Judge Sutherland SC

Judgment

MACFARLAN JA: I agree with Bellew J.
FULLERTON J: I agree with Bellew J.
BELLEW J: Andrew James Connell (the applicant) pleaded guilty in the District Court to the following…

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 Connell v The Queen

Details

AGLC: Connell v The Queen [2019] NSWCCA 70
Case: [2019] NSWCCA 70
Decision Date: 05 April 2019

CaseChat Overview and Summary

The appeal before the court involved the applicant, Connell, who had pleaded guilty to multiple charges of supplying prohibited drugs and dealing with the proceeds of crime. The applicant sought to challenge the aggregate sentence imposed by the sentencing judge, arguing that the disparity between his sentence and that of his co-offender, who received a more lenient sentence, was unjustifiable. The applicant contended that the sentencing judge erred in not indicating that two of the sentences should be wholly concurrent, leading to an unjust disparity in sentencing.

The court was required to determine whether the sentencing judge erred in imposing the aggregate sentence, particularly in relation to the issue of whether certain sentences should have been wholly concurrent. The court also needed to assess whether the applicant's sentence was disproportionate to that of his co-offender, considering the principle of parity. Furthermore, the court had to examine whether the sentencing judge erred in not applying a fixed principle regarding the imposition of wholly concurrent sentences in cases involving both drug supply and dealing in the proceeds of crime.

The court found that the sentencing judge did not err in imposing the aggregate sentence. The court held that there were differentiating factors which justified the disparity in sentences between the applicant and his co-offender. The court emphasised that there is no general rule dictating whether sentences should be imposed concurrently or cumulatively, and that such issues are to be determined by the principles of totality and whether the sentence for one offence can adequately reflect the criminality of another. The court also noted that there is no fixed principle that mandates wholly concurrent sentences in every case involving both drug supply and dealing in the proceeds of crime. The court concluded that the aggregate sentence imposed accurately reflected the overall criminality of the applicant.

The appeal was dismissed, and the original sentence was upheld. The court found no basis for the applicant's claim of unjust disparity and confirmed the validity of the aggregate sentence imposed by the sentencing judge.

Orders