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R v Connolly

R v Connolly

Case [2016] QCA 132 18 May 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Connolly [2016] QCA 132

PARTIES:

R
v
CONNOLLY, Brian Terrence
(applicant)

FILE NO/S:

CA No 31 of 2016
SC No 65 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Townsville – Date of Sentence: 2 February 2016

DELIVERED ON:

18 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2016

JUDGES:

Philippides and Philip McMurdo JJA and Flanagan J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   Other than the recording of convictions, the sentences imposed on counts 2-19 are set aside and the applicant not be further punished on those counts.

4.   The sentence imposed on count 1 is varied to the extent that it is suspended after a period of six months imprisonment is served, in lieu of a period of 12 months imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own plea of one count of drug trafficking, 18 counts of supplying dangerous drugs, two counts of possessing things and one count of possessing a dangerous drug – where the applicant was sentenced to concurrent sentences of four years imprisonment, suspended after 12 months, for an operational period of five years on the trafficking count; one year imprisonment for the supplying dangerous drugs offences; and three months imprisonment for possessing a dangerous drug, with convictions recorded but no further punishment for the remaining counts – where the applicant submitted the sentencing judge erred in imposing concurrent sentences of imprisonment for each of the supplying counts – where the applicant submitted the sentencing judge erred in concluding in relation to the trafficking count that a more mature offender would have had to serve a period of imprisonment of longer than 12 months – whether it was wrong to impose concurrent terms for the supplying counts where the acts largely constituted the trafficking count – whether the sentencing process was infected by error in considering that a more mature offender would have had to serve a period of imprisonment of longer than 12 months – whether sentencing discretion ought to be re-exercised

R v Ahmetaj[2015] QCA 248, cited
R v Blumke [2015] QCA 264, considered
R v Bobonica & Runcan[2009] QCA 287, cited
R v Brown[2015] QCA 225, cited
R v Challacombe[2009] QCA 314, considered
R v Dang[1999] QCA 414, cited
R v Dowel; Ex-parte Attorney-General (Qld)[2013] QCA 8, considered
R v Engellenner[2012] QCA 6, considered
R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited
R v Jobsz[2013] QCA 5, cited
R v Johnson[2007] QCA 433, cited
R v McAway (2008) 191 A Crim 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 Connolly

Details

AGLC: R v Connolly [2016] QCA 132
Case: [2016] QCA 132
Decision Date: 18 May 2016

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, who had been convicted on his own plea of various drug-related offences. The respondent had pleaded guilty to one count of drug trafficking, 18 counts of supplying dangerous drugs, two counts of possessing things, and one count of possessing a dangerous drug. He was sentenced to concurrent sentences of imprisonment, with some sentences being suspended. The respondent challenged the concurrent nature of the sentences for the supplying counts and the basis upon which the sentencing judge imposed a 12-month suspended period for the trafficking count. The central legal issues were whether the sentencing judge erred in imposing concurrent terms for the supplying counts and in considering that a more mature offender would have had to serve a longer period of imprisonment than 12 months for the trafficking count. The court was required to determine whether these errors warranted interference with the sentence.

The court found that the sentencing judge had indeed erred in imposing concurrent terms for the supplying counts, as they largely constituted the trafficking count. The court further held that the sentencing judge had erred in concluding that a more mature offender would have had to serve a period of imprisonment longer than 12 months for the trafficking count. These errors warranted interference with the sentence. The court emphasised the importance of correctly applying sentencing principles and ensuring that the sentence imposed reflects the gravity of the offences. Consequently, the court granted the application for leave to appeal, allowed the appeal, and set aside the sentences imposed on counts 2-19, with convictions recorded but no further punishment. The court also varied the sentence imposed on count 1 to be suspended after a period of six months imprisonment, rather than 12 months.

The court's decision underscores the importance of careful application of sentencing principles and the need for a coherent sentencing process. The court's orders reflect a careful balancing of the need to impose appropriate punishment with the principle of proportionality in sentencing. The court's intervention ensured that the sentence imposed was commensurate with the gravity of the offences and adhered to the correct legal principles.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. Other than the recording of convictions, the sentences imposed on counts 2-19 are set aside and the applicant not be further punished on those counts.

4. The sentence imposed on count 1 is varied to the extent that it is suspended after a period of six months imprisonment is served, in lieu of a period of 12 months imprisonment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Connolly [2016] QCA 132

Most Recent Citation

R v Clark [2016] QCA 173

Cases citing this decision · 14 of 14 shown

R v HCY
[2025] QCA 107 Para 17

…secutor before the sentencing judge related to trafficking when the maximum penalty was 25 years’ imprisonment. Those authorities were R v Connolly [2016] QCA 132, R v McLean [2021] QCA 70 and R v Staines [2022] QCA 187. The prosecutor before the sentencing judge submitted those authorities supported a range of f…
R v Murphy
[2023] QCA 98 Para 23

…orders of imprisonment.[6] [5] Pearce v The Queen (1998) 194 CLR 610 and R v Dibble; Ex-parte Attorney General (Qld) [2014] QCA 8. [6] R v Connolly [2016] QCA 132, [16] – [17].…
R v Rowland
[2020] QCA 98

…Based on the facts, which his Honour accepted as the basis of sentence, the cases of R v Connolly [2016] QCA 132 and R v Spark [2018] QCA 231, which the applicant submits support the contention that the appropriate head sentence was three and a half to four years, were less serious examples of offending than in t…
R v Evelyn
[2020] QSC 97 Para 1

…relevant range of sentences for comparable offending is between four and six years, relying on The Queen v Reid [2013] QCA 190, The Queen v Connolly [2016] QCA 132, The Queen v Wilson [2016] QCA 98, R v Hesketh [2004] QCA 116, and R v Gabbert [2010] QCA 133. Reference was also made to R v C’Ward [2014] QCA 15 at…
R v Spark
[2018] QCA 231

…[2][2016] QCA 132.…
R v Baker
[2018] QCA 209 Para 4

…pproach. The sentencing judge adopted a conventional approach by imposing the most severe penalty upon the most serious offence. [4] R v Connolly [2016] QCA 132 at [16]-[17]; R v Thompson (2016) 260 A Crim R 242 at [30]; R v Chan [2017] QCA 8 at [4] (which concerned counts of possession as well as of a supply).…
R v Richards
[2017] QCA 299 Para 1

…n being twice punished for the same act or omission.[39] The present was such a case. [39] R v Bobonica & Runcan [2009] QCA 287 at [38]; R v Connolly [2016] QCA 132 at [16]; R v Kiripatea [1991] 2 Qd R 686 at 701-702.…
R v Roach
[2017] QCA 240 Para 1

…egulations, showed the level of sentencing appropriate for the type of offence although those decisions were not binding.[31] [27][2015] QCA 264. [28][2016] QCA 132. [29][2017] QCA 17. [30]T1-22/30-40. [31]T1-31-10-14.…
R v Ford
[2017] QCA 212

…[2] [2016] QCA 132.…
R v Chan
[2017] QCA 8 Para 4

…nt for the same act if concurrent terms of imprisonment are imposed for the counts of supplying.[2] The same approach is appropriate in this case. [1][2016] QCA 132 at [16]; see also s 16 of the Criminal Code (Qld). [2]See also R v Bobonica & Runcan [2009] QCA 287 at [38].…
R v Squires
[2016] QCA 348

…HCA 39, cited R v Barton [2006] QCA 367, cited R v Clark [2016] QCA 173, considered R v Connolly [2016] QCA 132, cited R v Cooney; ex parte Attorney-General (Qld) [2008] QCA 414, cited R v McMahon [2003] QCA 369, cited R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered R v Prendergast [2012] QCA 164, cited R…
R v Borowicz
[2016] QCA 211 Para 2

…R v Challacombe ,[25] R v Baradel [26] and R v C’Ward [27] in making the submission that the sentence imposed is not manifestly excessive.[28] [22][2016] QCA 132. [23][2005] QCA 379. [24][2008] QCA 401. [25][2009] QCA 314. [26][2016] QCA 114. [27][2014] QCA 15. [28]Outline for the Respondent para 19.…
R v Thompson
[2016] QCA 196 Para 6

…521 at 528, [46]; R v Elhusseini [1988] 2 Qd R 442 at 455; R v Kiripatea [1991] 2 Qd R 686 at 701-2; R v Dang [1999] QCA 414 at [21]; R v Connolly [2016] QCA 132 at [16]-[17].…
R v Clark
[2016] QCA 173 Para 3

…ed himself off drugs, returned home and gained work in his family’s business, initially working short hours because of his ill health”.[49] [48][2016] QCA 132. [49] Connolly at [14].…

View all 14 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Blumke
[2015] QCA 264 Para 19

…supply counts, also suspended after 12 months.[7] Blumke was the only authority put before the Court concerning an offender of more mature years. [5][2015] QCA 264. [6]AB 18.20-.25. [7] Blumke [2015] QCA 264 at [2].…
R v Ahmetaj
[2015] QCA 248 Para 9

…uld be both unrealistic and unduly harsh to refuse to recognise that the applicant too is a victim of dangerous drugs.” [20]See R v Ahmetaj [2015] QCA 248 at [89]; R v Brown [2015] QCA 225 at [50]; R v Galeano [2013] QCA 51 at [141]. [21][2007] QCA 433 at [17] (citations omitted).…
R v Brown
[2015] QCA 225 Para 9

…harsh to refuse to recognise that the applicant too is a victim of dangerous drugs.” [20]See R v Ahmetaj [2015] QCA 248 at [89]; R v Brown [2015] QCA 225 at [50]; R v Galeano [2013] QCA 51 at [141]. [21][2007] QCA 433 at [17] (citations omitted).…
R v Galeano
[2013] QCA 51 Para 9

…he applicant too is a victim of dangerous drugs.” [20]See R v Ahmetaj [2015] QCA 248 at [89]; R v Brown [2015] QCA 225 at [50]; R v Galeano [2013] QCA 51 at [141]. [21][2007] QCA 433 at [17] (citations omitted).…
R v Dowel; Ex parte
[2013] QCA 8 Para 1

…ant statutory requirements, sentencing principles and standards derived from statute, decided cases and comparable sentencing decisions.” [17][2013] QCA 8. [18][2013] QCA 8 at [21] (citations omitted). Re-exercise of the sentencing discretion…
R v Jobsz
[2013] QCA 5 Para 10

…period, he exposes himself to serving a further period of actual custody in addition to the sentence imposed for the reoffending. [22]See R v Jobsz [2013] QCA 5 at [16] per de Jersey CJ.…
R v Engellenner
[2012] QCA 6 Para 30

…disposition of the trafficking. By the time of sentence, he had complied with bail conditions for 21 months and had obtained full time work. [16][2012] QCA 6.…
R v Challacombe
[2009] QCA 314 Para 28

…listically be thought to serve as a real deterrent to other young people minded to go into the business of trafficking in dangerous drugs.” [13][2009] QCA 314. [14][2009] QCA 314 at [16].…
R v Bobonica & Runcan
[2009] QCA 287 Para 16

…r and defence counsel, in response to a direct enquiry by the judge about the appropriate form of the sentence. [2]AB 34. [3] R v Bobonica & Runcan [2009] QCA 287 at [38].…
R v McAway
[2008] QCA 401 Para 27

…ved herself from a relationship with an older male, through whom she had become involved in drugs, and had completed a drug diversion course. [11][2008] QCA 401. [12][2008] QCA 401 at [19].…
R v Johnson
[2007] QCA 433 Para 9

…of dangerous drugs.” [20]See R v Ahmetaj [2015] QCA 248 at [89]; R v Brown [2015] QCA 225 at [50]; R v Galeano [2013] QCA 51 at [141]. [21][2007] QCA 433 at [17] (citations omitted).…
R v Taylor
[2005] QCA 379 Para 26

…ney.[10] He had no prior criminal history, was remorseful, provided excellent references and presented with positive rehabilitative prospects. [9][2005] QCA 379. [10][2005] QCA 379 at [7]. The penalty at the time for trafficking in MDMA and MDEA (Schedule 2 drugs) was 20 not 25 years.…
R v Dang
[1999] QCA 414 Para 17

…lation to the other grounds of appeal and would not of itself require this Court to interfere with the sentence imposed on count 1 . [4] [4] R v Dang [1999] QCA 414. Error in the exercise of the sentencing discretion…

Legislation cited in this decision · 1

Liquor Act 1992 (Qld)
1 mention (from Para 5)

CITATION:	R v Connolly [2016] QCA 132
PARTIES:	R v CONNOLLY, Brian Terrence (applicant)
FILE NO/S:	CA No 31 of 2016 SC No 65 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Townsville – Date of Sentence: 2 February 2016
DELIVERED ON:	18 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	26 April 2016
JUDGES:	Philippides and Philip McMurdo JJA and Flanagan J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. Other than the recording of convictions, the sentences imposed on counts 2-19 are set aside and the applicant not be further punished on those counts. 4. The sentence imposed on count 1 is varied to the extent that it is suspended after a period of six months imprisonment is served, in lieu of a period of 12 months imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was convicted on his own plea of one count of drug trafficking, 18 counts of supplying dangerous drugs, two counts of possessing things and one count of possessing a dangerous drug – where the applicant was sentenced to concurrent sentences of four years imprisonment, suspended after 12 months, for an operational period of five years on the trafficking count; one year imprisonment for the supplying dangerous drugs offences; and three months imprisonment for possessing a dangerous drug, with convictions recorded but no further punishment for the remaining counts – where the applicant submitted the sentencing judge erred in imposing concurrent sentences of imprisonment for each of the supplying counts – where the applicant submitted the sentencing judge erred in concluding in relation to the trafficking count that a more mature offender would have had to serve a period of imprisonment of longer than 12 months – whether it was wrong to impose concurrent terms for the supplying counts where the acts largely constituted the trafficking count – whether the sentencing process was infected by error in considering that a more mature offender would have had to serve a period of imprisonment of longer than 12 months – whether sentencing discretion ought to be re-exercised R v Ahmetaj[2015] QCA 248, cited R v Blumke [2015] QCA 264, considered R v Bobonica & Runcan[2009] QCA 287, cited R v Brown[2015] QCA 225, cited R v Challacombe[2009] QCA 314, considered R v Dang[1999] QCA 414, cited R v Dowel; Ex-parte Attorney-General (Qld)[2013] QCA 8, considered R v Engellenner[2012] QCA 6, considered R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, cited R v Jobsz[2013] QCA 5, cited R v Johnson[2007] QCA 433, cited R v McAway (2008) 191 A Crim R…