R v Connell - [2003] NSWCCA 90

CITATION: R v Connell [2003] NSWCCA 90 revised - 02/04/2003

HEARING DATE(S): 25 March 2003

JUDGMENT DATE:
25 March 2003

JUDGMENT OF: Studdert J at 1; Smart AJ at 33

DECISION: Leave to appeal granted; appeal dismissed.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act, s 32
Drug Misuse and Trafficking Act, s 25A(1)

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2000 [2002] NSWCCA 518
R v McArthur [2000] NSWCCA 390

PARTIES :
Regina v Kelvin John Connell

FILE NUMBER(S): CCA 60228/02

COUNSEL: G.I.O. Rowling (Crown)
R.J. Button (Applicant)

SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/31/0360

LOWER COURT
JUDICIAL OFFICER : English DCJ

60228/02

STUDDERT J
SMART AJ
Tuesday 25 March 2003

REGINA v KELVIN JOHN CONNELL

Judgment

1 STUDDERT J: The applicant, Kelvin John Connell, is seeking leave to appeal against a sentence imposed by her Honour Judge English in the Gosford District Court on 4 April 2002. On that date the applicant adhered to a plea of guilty that had been entered in the Local Court at Gosford to a count of supplying drugs on an ongoing basis between 16 and 20 July 2001.

2 Her Honour took into account a number of matters on a Form 1 and imposed a sentence of imprisonment for four years commencing on 15 March 2002 and expiring on 14 March 2006. Her Honour fixed a non-parole period of two years and six months expiring on 14 September 2004.

3 Section 25A(1) of the Drug Misuse & Trafficking Act provides for a maximum penalty of twenty years imprisonment for this class of offence.

4 The transactions in question were transactions into which the applicant entered with an undercover police operative and they were evidenced in part by conversations between the undercover operative and the applicant, which were recorded by means of a listening device.

5 The first of the dealings was on 17 July 2001 when the applicant supplied the undercover operative with 3.5 grams of amphetamine in return for the sum of $150. There were two further transactions on the following day involving the same undercover operative as purchaser, the same quantity of amphetamine on each occasion and the same purchase price.

6 There followed, on 20 July 2001, a supply by the applicant to the undercover operative of 55 grams of the same drug for the sum of $1600.

7 Following that transaction, the applicant was immediately arrested. He was found to have on his person a rusty brown tin. Inside that tin were two plastic resealable bags containing amphetamine. There was also a rock-like substance wrapped in silver foil. There was also a clear resealable bag containing several small buds of cannabis head.

8 The applicant’s car was parked a short distance away and in that there was found a further quantity of cannabis buds in a large clear resealable bag. The applicant had $440 in his wallet and he also…

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 [2003] NSWCCA 90
Case: [2003] NSWCCA 90
Decision Date: 25 March 2003

CaseChat Overview and Summary

In the matter of Regina v Kelvin John Connell, the Court of Criminal Appeal considered an application for leave to appeal against a sentence imposed by the District Court. The applicant, Kelvin John Connell, had pleaded guilty to supplying drugs on an ongoing basis and was sentenced to imprisonment for four years with a non-parole period of two years and six months. The applicant's appeal was based on the contention that the sentence imposed was manifestly excessive.

The key legal issues before the Court of Criminal Appeal were whether the sentence imposed by the District Court was manifestly excessive and whether the applicant was entitled to leave to appeal. The Court had to consider the objective gravity of the crime, the subjective features of the case, and whether the sentence fell within the permissible range.

The Court found that the sentence imposed by the District Court was towards the upper end of the sentencing range but was not manifestly excessive. The Court observed that the objective seriousness of the crime was significant due to the large quantity of drugs involved and the potential for disastrous consequences. The Court also considered the subjective features of the case, including the applicant's criminal history and the motivation for the offence. The Court concluded that the sentence was within the permissible range in the exercise of a sound discretionary judgment and that the applicant was not entitled to leave to appeal. Consequently, the Court granted leave to appeal but dismissed the appeal.

Orders