McDonogh v The Queen - [2011] NTCCA 12

McDonogh v The Queen [2011] NTCCA 12
PARTIES: MARLEY McDONOGH
v

THE QUEEN

TITLE OF COURT:   COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:   CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:   CA 4 of 2011 (21007532)
DELIVERED:   2 NOVEMBER 2011
HEARING DATES:   2 NOVEMBER 2011
JUDGMENT OF:   RILEY CJ, MILDREN & MARTIN (BR) JJ
APPEAL FROM:   SOUTHWOOD J
CATCHWORDS:

APPEAL AGAINST SENTENCE – that the learned sentencing Judge erred in applying the principle of parity – appeal dismissed.
Misuse of Drugs Act
R v MacGowan (1988) 42 SASR 580, applied.
Lowe v The Queen (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; Knight v The Queen [2001] NTCCA 4, followed.
REPRESENTATION:
Counsel:
Appellant:   I Rowbottam (Pro bono)
Respondent:   W J Karczewski QC
Solicitors:
Appellant:   Self-represented
Respondent:   Office of the Director of Public Prosecutions
Judgment category classification:           B
Judgment ID Number:   Mar1102
Number of pages:   18

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McDonogh v The Queen [2011] NTCCA 12

No. 3 of 2011 (21007532)
BETWEEN:

MARLEY McDONOGH

Appellant

AND:

THE QUEEN

Respondent

CORAM: RILEY CJ, MILDREN & MARTIN (BR) JJ
EX TEMPORE
REASONS FOR JUDGMENT
(Delivered 2 November 2011)
Riley CJ:
[30] I agree that the application should be dismissed for the reasons provided by Justice Martin.
Mildren J:

[31] I also agree.

Martin (BR) J:
[1] This is an appeal against a sentence of four years and six months imprisonment, suspended after two years with conditions, imposed following pleas of guilty to three offences against the Misuse of Drugs Act. Those offences were:
(i)Count 1 – Unlawfully supplying a dangerous drug, namely MDMA, in the circumstance of aggravation that the amount of the dangerous drug was a commercial quantity, namely an unknown quantity in excess of a commercial quantity (ss 5(1)and (2)(b)(iii) of the Misuse of Drugs Act (“the Act”)).
(ii)Count 2 – Unlawfully supplying a dangerous drug, namely LSD, in the circumstance of aggravation that the amount of the dangerous drug was a commercial quantity, namely an unknown quantity in excess of a commercial quantity (ss 5(1)and (2)(b)(iA) of the Act).
(iii)Count 4 – Possessing property, namely $2,300, obtained directly or indirectly from the commission of an offence against s 5 of the Misuse of Drugs Act, knowing the property to have been so obtained (s 6(1)(a) of the Act).

[2] The appellant’s offending occurred in the course of an ongoing criminal enterprise which involved co-offenders importing the drugs into the Northern Territory and supplying them to the appellant who then supplied the drugs to a network of dealers for distribution within the Territory. The co-offenders, Tristan Ferguson and Trudy Ferguson (“the Fergusons”) were sentenced by the same Judge approximately four weeks before the appellant was sentenced following their pleas of guilty to eight offences against the Act. Both were sentenced to an aggregate sentence of four years and nine months imprisonment,…

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 McDonogh v The Queen

Details

AGLC: McDonogh v The Queen [2011] NTCCA 12
Case: [2011] NTCCA 12
Decision Date: 02/11/2011

CaseChat Overview and Summary

The appeal concerned a sentence imposed by a sentencing judge. The appellant, McDonogh, appealed against the sentence, arguing that the sentencing judge had erred in applying the principle of parity. The appeal was heard by Riley CJ, Mildren and Martin (BR) JJ.

The central legal issue before the appellate court was whether the sentencing judge had correctly applied the principle of parity when determining the appellant's sentence. This principle requires that sentences imposed on co-offenders for the same or similar offences should be broadly consistent, unless there are justifiable reasons for disparity.

The court dismissed the appeal, finding no error in the sentencing judge's application of the parity principle. The reasoning likely involved an assessment of whether the appellant's circumstances and the circumstances of any co-offenders warranted the sentence imposed, and whether any disparity was justified by relevant factors. The court affirmed the sentence imposed by the sentencing judge.

Orders