R v Cone - [2010] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cone [2010] QCA 274

PARTIES:

R
v
CONE, Mark Lindsay
(applicant)

FILE NO/S:

CA No 155 of 2010
SC No 4 of 2010
SC No 398 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court in Brisbane

DELIVERED ON:

12 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2010

JUDGE:

McMurdo P, Chesterman JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

a. Application for leave to appeal against sentence is granted.

b.Allow the appeal:

i. Set aside the sentences imposed in respect of the count of supplying a dangerous drug on or about 23 October 2007 of four and a half years imprisonment and the sentence imposed on the count of possessing a dangerous drug with a circumstance of aggravation on 24 October 2007 of four and a half years imprisonment and substitute for each of those terms, terms of imprisonment of three and a half years.

ii. Set aside the term of imprisonment of fifteen months imprisonment in respect of the count of possession of a dangerous drug with a circumstance of aggravation on 30 September 2008 and substitute therefore a term of imprisonment of nine months imprisonment.

The sentences otherwise stand. The 11 September 2010 is fixed as the applicant's eligibility for release on parole date.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to four indictable offences and four summary offences – where the applicant has an extensive criminal history – where the applicant was on parole when the first group of offences were committed – where the applicant was on bail for the first group of offences when the second group of offences were committed – whether the learned sentencing judge placed sufficient reliance on the applicant’s plea of guilty – whether the applicant held real prospects of rehabilitation – whether the sentences imposed were manifestly excessive or inadequate

Drugs Misuse Act 1986 (Qld)
Weapons Act 1990 (Qld)

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
R v Daley(2004) 147 A Crim R 440; [2004] QCA 385, considered
R v Michalas [2007] QCA 38, considered
R v Stewart[2004] QCA 320, considered
R v Swan[2000] QCA 430, considered

COUNSEL:

B Mumford for the applicant
M Lehane for the respondent

SOLICITORS:

Fisher Dore for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] McMURDO P: I agree with Cullinane J.

[2] CHESTERMAN JA: I agree with the orders proposed by Cullinane J for the reasons given by his honour.

[3] CULLINANE J: The applicant seeks leave to appeal against sentences imposed in the Supreme Court at Brisbane on 11 June 2010.

[4] On that day the applicant pleaded guilty to four indictable offences and four summary offences. The indictable…

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 R v Cone

Details

AGLC: R v Cone [2010] QCA 274
Case: [2010] QCA 274
Decision Date: 12 October 2010

CaseChat Overview and Summary

The applicant in R v Cone appealed against his sentence, which was imposed following his guilty plea to four indictable offences and four summary offences. The appellant's extensive criminal history, coupled with the fact that he was on parole for an earlier offence at the time of the first group of offences and on bail for the first group of offences when the second group was committed, played a significant role in the sentencing decision. The primary issue before the court was whether the learned sentencing judge adequately considered the appellant's plea of guilty, his prospects of rehabilitation, and the overall severity of the sentences imposed.

The court held that the sentences were manifestly excessive, particularly in light of the appellant's plea of guilty and the potential for rehabilitation. The sentencing judge did not place sufficient weight on the plea of guilty, which is a significant mitigating factor. Furthermore, the court found that the appellant had real prospects of rehabilitation, which should have been taken into account when determining the appropriate length of the sentences. The court concluded that the sentences imposed did not reflect a balanced approach to the appellant's culpability, history, and prospects for rehabilitation.

As a result of the appeal, the court granted leave to appeal against the sentence and allowed the appeal in part. The sentences for supplying a dangerous drug and possessing a dangerous drug with aggravation on certain dates were reduced from four and a half years to three and a half years each, while the sentence for possessing a dangerous drug with aggravation on another date was reduced from fifteen months to nine months. The remaining sentences were upheld, and the eligibility date for parole was fixed at 11 September 2010.

Orders

Orders of the court

a. Application for leave to appeal against sentence is granted.

b.Allow the appeal:

i. Set aside the sentences imposed in respect of the count of supplying a dangerous drug on or about 23 October 2007 of four and a half years imprisonment and the sentence imposed on the count of possessing a dangerous drug with a circumstance of aggravation on 24 October 2007 of four and a half years imprisonment and substitute for each of those terms, terms of imprisonment of three and a half years.

ii. Set aside the term of imprisonment of fifteen months imprisonment in respect of the count of possession of a dangerous drug with a circumstance of aggravation on 30 September 2008 and substitute therefore a term of imprisonment of nine months imprisonment.

The sentences otherwise stand. The 11 September 2010 is fixed as the applicant's eligibility for release on parole date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Cone [2010] QCA 274
PARTIES:	R v CONE, Mark Lindsay (applicant)
FILE NO/S:	CA No 155 of 2010 SC No 4 of 2010 SC No 398 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court in Brisbane
DELIVERED ON:	12 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2010
JUDGE:	McMurdo P, Chesterman JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	a. Application for leave to appeal against sentence is granted. b.Allow the appeal: i. Set aside the sentences imposed in respect of the count of supplying a dangerous drug on or about 23 October 2007 of four and a half years imprisonment and the sentence imposed on the count of possessing a dangerous drug with a circumstance of aggravation on 24 October 2007 of four and a half years imprisonment and substitute for each of those terms, terms of imprisonment of three and a half years. ii. Set aside the term of imprisonment of fifteen months imprisonment in respect of the count of possession of a dangerous drug with a circumstance of aggravation on 30 September 2008 and substitute therefore a term of imprisonment of nine months imprisonment. The sentences otherwise stand. The 11 September 2010 is fixed as the applicant's eligibility for release on parole date.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to four indictable offences and four summary offences – where the applicant has an extensive criminal history – where the applicant was on parole when the first group of offences were committed – where the applicant was on bail for the first group of offences when the second group of offences were committed – whether the learned sentencing judge placed sufficient reliance on the applicant’s plea of guilty – whether the applicant held real prospects of rehabilitation – whether the sentences imposed were manifestly excessive or inadequate Drugs Misuse Act 1986 (Qld) Weapons Act 1990 (Qld) AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered R v Daley(2004) 147 A Crim R 440; [2004] QCA 385, considered R v Michalas [2007] QCA 38, considered R v Stewart[2004] QCA 320, considered R v Swan[2000] QCA 430, considered
COUNSEL:	B Mumford for the applicant M Lehane for the respondent
SOLICITORS:	Fisher Dore for the applicant Director of Public Prosecutions (Queensland) for the respondent