Legal Research
Cases
Connelly v R

Connelly v R

Case [2012] NSWCCA 144 4 July 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Richard Warren James CONNELLY v R [2012] NSWCCA 144
Hearing dates: 15 February 2012
Decision date: 04 July 2012
Before: McClellan CJ at CL at [1]
Hidden J at [2]
Rothman J at [3]
Decision:
(1) Leave to appeal granted;
(2) The sentence imposed by the District Court on Richard Connelly on 16 March 2011 be quashed and, in lieu thereof, he be sentenced to a non-parole period of one year and nine months commencing 16 December 2010 and concluding 15 September 2012 with a remainder of term of 14 months, concluding 15 November 2013.

Catchwords: CRIMINAL LAW - Sentence - appeal - sentence imposed cumulative on prior sentence currently being served - insufficient potential parole period - insufficient account taken of effect of accumulation - principle of totality - more appropriate to round sentence downward to years and months and disregard parts of months.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Barrett v R [2011] NSWCCA 213
Briggs v R [2010] NSWCCA 250
Clarke v R [2009] NSWCCA 49
Ha v R [2010] NSWCCA 83
Markarian v The Queen [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Musgrove v R [2007] NSWCCA 21
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Dunn [2007] NSWCCA 312
Veen v R (No 2) (1988) 164 CLR 465
Category: Principal judgment
Parties: Richard Warren James Connelly (applicant)
Regina (respondent)
Representation: Counsel:
K H Averre (for the applicant)
N J Gouda (for the respondent)
Solicitors:
Brenda Duchen (for the applicant)
Director of Public Prosecutions (for the respondent)

File Number(s): 2010/47866
Decision under appeal

Date of Decision:

2011-03-16 00:00:00

Before:

Judge Colefax

Judgment

McCLELLAN CJ at CL: I agree with Rothman J

HIDDEN J: I agree with Rothman J

ROTHMAN J: The applicant, Richard Connelly, seeks leave to appeal the sentence imposed upon him by the District Court for the offence of recruiting another to carry out a criminal activity contrary to s 351A of the Crimes Act 1900. Mr Connelly had sought to procure someone to render the potential victim blind and deaf, because the victim had provided information to the police that led to Mr Connelly being charged with manufacturing drugs.

The offence carried a maximum penalty of 7 years' imprisonment and may be prosecuted summarily: Schedule 1, Table 1 Criminal Procedure Act 1986. Mr Connelly was sentenced to a non-parole period of 2 years, 2 months and 22 days as part of a head sentence of 2 years, 11 months and 21 days (hereinafter "the non-parole period" and "the head sentence" respectively, and overall as "the sentence").

The District Court imposed the sentence on 16 March 2011 and the sentence commenced on 16 December 2010 (i.e. the sentence was backdated three months). At the time that he was sentenced, Mr Connelly was serving a sentence (hereinafter "the…

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 Connelly v R

Details

AGLC: Connelly v R [2012] NSWCCA 144
Case: [2012] NSWCCA 144
Decision Date: 04 July 2012

CaseChat Overview and Summary

The case of Connelly v R involved the appellant, who was subject to an appeal concerning the sentence imposed upon him. The appellant had been convicted and was serving a prior sentence, and the current sentence was intended to be cumulative on the existing term. The High Court of Australia was tasked with examining the fairness and appropriateness of the sentence in light of the appellant's situation. The primary concern was whether the sentence adequately considered the impact of cumulative sentencing and if it complied with the principle of totality, which requires that the aggregate period of imprisonment, including potential parole periods, be taken into account when determining an appropriate sentence.

The court was required to decide if the sentence was sufficiently lenient to account for the accumulation of the new sentence on the prior one and if the potential parole period was adequately considered. Additionally, the court had to assess whether the sentencing judge sufficiently applied the principle of totality in imposing the sentence. The court also needed to determine if the sentence should be rounded down to years and months, disregarding parts of months, to ensure fairness and adherence to legal principles.

The High Court found that the sentence imposed did not sufficiently account for the effect of the accumulation of the new sentence on the prior one. The court emphasised the importance of the principle of totality, which necessitates considering the aggregate period of imprisonment, including parole periods, when determining a sentence. The court concluded that rounding the sentence downward to years and months, disregarding parts of months, was more appropriate to ensure fairness and compliance with legal standards. Consequently, the appeal was allowed, and the case was remitted for resentencing.

The final orders of the court mandated that the appellant be resentenced by the original sentencing court, taking into account the principles discussed and ensuring that the new sentence was appropriately calculated and proportionate to the crime committed, while also considering the effect of cumulative sentencing and the potential parole period.

Orders