R v Connell - [2013] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v CONNELL [2013] NSWCCA 155
Hearing dates: 11 June 2013
Decision date: 03 July 2013
Before: Hoeben CJ at CL at [1]
Harrison J at [65]
Beech-Jones J at [66]
Decision:
Crown appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - 13 counts of demand money with menaces with intent and 11 counts of knowingly deal with the proceeds of crime - initial demand and threat not made by offender - Crown appeal - substantial overlap in offending - money laundering counts directly related to demand counts - inappropriateness of Crown relying on parity principle - general deterrence - whether sentences aggregated was manifestly inadequate - Crown appeal dismissed.
Legislation Cited: Crimes Act 1900 - s99(2), s193B(2)
Crimes (Sentencing Procedure) Act 1999 - s53A
Criminal Appeal Act, 1912 - s5D
Cases Cited: Brent Redfern v R [2012] NSWCCA 178
Delaney v R; R v Delaney [2013] NSWCCA 150
House v R [1936] HCA 40; 55 CLR 499
Jiang v R [2010] NSWCCA 277
Lowndes v R [1999] HCA 29; 195 CLR 665
Markarian v R [2005] HCA 25; 228 CLR 357
Pearce v R [1998] HCA 57; 194 CLR 610
R v Nykolyn [2012] NSWCCA 219
Category: Principal judgment
Parties: Regina - Applicant Crown
Joseph Glen Connell - Respondent
Representation: Counsel:
Mr R Herps - Applicant/Crown
Mr I McLachlan - Respondent
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions - Applicant Crown
Marsdens Law Group - Respondent

File Number(s): 2010/298498
Decision under appeal

Date of Decision:

2012-12-17 00:00:00

Before:

Charteris DCJ

File Number(s):

2010/298498

Judgment

HOEBEN CJ at CL:

Offences and sentence

The respondent pleaded guilty to an indictment which contained 24 counts. There were 13 counts of demand money with menaces with intent, contrary to s99(2) of the Crimes Act 1900, which carries a maximum penalty of imprisonment for 14 years. The first of those counts occurred on 13 May 2010 and the last on 7 September 2010. There were also 11 counts of knowingly deal with the proceeds of crime contrary to s193B(2) of the Crimes Act 1900 which carries a maximum penalty of imprisonment for 15 years. The first of those offences occurred on 20 May 2010 and the last on 7 September 2010.

The respondent was sentenced by Charteris DCJ at the Sydney District Court on 17 December 2012. His Honour imposed an aggregate sentence of imprisonment for 3 years and 3 months, with a non-parole period of 1 year and 9 months, commencing 1 February 2012 and expiring 31 August 2013. The balance of term would expire on 30 April 2015.

These proceedings are brought by the Director of Public Prosecutions, pursuant to s5D of the Criminal Appeal Act, 1912. Notice of the Appeal was signed on 7 March and served on the respondent on 9 March 2013.

Factual background

The full factual background to this matter is set out in the matter of Delaney v R; R…

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 Connell

Details

AGLC: R v Connell [2013] NSWCCA 155
Case: [2013] NSWCCA 155
Decision Date: 03 July 2013

CaseChat Overview and Summary

The case of R v Connell involved the appellant who had been convicted and sentenced on 13 counts of demanding money with menaces and 11 counts of knowingly dealing with the proceeds of crime. The appeal was brought by the Crown, seeking a more severe sentence on the grounds that the original sentence was manifestly inadequate. The matter was heard in the High Court of Australia.

The legal issues before the court were whether the original sentence was manifestly inadequate, and if the Crown was correct in asserting that the sentences should be aggregated due to the substantial overlap in the offending. The court also considered whether the Crown was right to rely on the principle of parity and the need for general deterrence in determining the appropriate sentence. Another aspect of the appeal was whether the money laundering counts should be considered directly related to the demand counts, impacting the overall sentence.

The High Court determined that the sentences imposed on the appellant were not manifestly inadequate, even when considering the overlap in offending and the direct relationship between the money laundering and demand counts. The court found that the principle of parity and general deterrence did not justify an increased sentence in this instance. The court held that the Crown's appeal should be dismissed, as the original sentence was deemed appropriate in all the circumstances. This decision emphasised the importance of individualised sentencing and the need to avoid excessive punishment based on the overlap between different types of criminal activity.

Orders