R v Denning - [2022] QCA 72

SUPREME COURT OF QUEENSLAND

CITATION:

R v Denning [2022] QCA 72

PARTIES:

R
v
DENNING, Sean Owen
(applicant)

FILE NO/S:

CA No 269 of 2021
SC No 761 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 22 October 2021 (Martin J)

DELIVERED ON:

10 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2022

JUDGES:

Sofronoff P and Bond JA and Boddice J

ORDER:

Leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs and one count of possessing a thing used in connection with trafficking in a dangerous drug – where the applicant was sentenced to six years imprisonment with respect to the trafficking count – where the applicant was convicted and not further punished with respect to the second count – where the sentence imposed was to be served cumulatively on a five year, six month sentence imposed in 2017 – where parole eligibility was set at April 2024 – where the applicant has an extensive criminal history, including previous drug offences – where the period of trafficking commenced six weeks after the applicant was released on parole – where the trafficking was at wholesale level – where the applicant provided drugs on credit and where the applicant pursued outstanding drug debts with threats of violence – where the applicant submits that the sentencing judge erred in setting the parole eligibility date, being fixed at more than 50 per cent of the overall head sentence – whether the sentencing judge erred with respect to the fixing of the parole eligibility date – whether the sentence represented a sound exercise of discretion – whether the sentence properly reflected the criminality involved in serious drug offending – whether the sentence is manifestly excessive

R v Berns[2020] QCA 36, considered
R v Byrne [2020] QCA 173, considered
R v Neilson[2014] QCA 221, considered
R v Nunn[2019] QCA 100, considered

COUNSEL:

S C Holt QC for the applicant
S J Bain for the respondent

SOLICITORS:

Owens & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Boddice J and with the order proposed by his Honour.
BOND JA: I agree with the reasons for judgment of Boddice J and with the order proposed by his Honour.
BODDICE J: On 22 October 2021, the applicant pleaded guilty to one count of trafficking in dangerous drugs and one count of possessing a thing used in connection with trafficking in a dangerous drug.
On the same date, the applicant was sentenced to six years imprisonment for the trafficking count and convicted and not further punished in respect of the remaining count. It was ordered that the sentence of imprisonment be served cumulatively on an effective…

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 Denning

Details

AGLC: R v Denning [2022] QCA 72
Case: [2022] QCA 72
Decision Date: 10 May 2022

CaseChat Overview and Summary

In the matter of R v Denning, the applicant appealed against the sentence imposed by the lower court. The applicant pleaded guilty to one count of trafficking in dangerous drugs and one count of possessing a thing used in connection with trafficking in a dangerous drug. The applicant was sentenced to six years imprisonment with respect to the trafficking count, to be served cumulatively on a five year, six month sentence imposed in 2017. The applicant submitted that the sentencing judge erred in setting the parole eligibility date, being fixed at more than 50 per cent of the overall head sentence, and that the sentence imposed was manifestly excessive. The court had to determine whether the sentencing judge erred with respect to the fixing of the parole eligibility date and whether the sentence represented a sound exercise of discretion. The court also had to determine whether the sentence properly reflected the criminality involved in serious drug offending and whether the sentence was manifestly excessive.

The court found that the sentencing judge appropriately took into account the time that the applicant had served in custody and would serve in custody before commencement of the sentence, when fixing the parole eligibility date. The sentencing judge specifically acknowledged that the applicant would be required to serve additional time as a result of the cancellation of his parole. The court found that the sentencing judge fixed the parole eligibility date after a proper consideration of all of the relevant circumstances and that there was no basis to conclude that it arose as a result of any misunderstanding of the sentencing submissions or through inadvertence. The court also found that a sentence of six years imprisonment, to be served cumulatively on the existing sentence of imprisonment fell well within a sound exercise of the sentencing discretion. The court found that the sentence properly reflected the criminality involved in serious drug offending commenced weeks after release on parole for a serious offence of violence. The court concluded that the applicant had not established any specific error or that the sentence imposed was manifestly excessive.

The court ordered that leave to appeal be refused. The court found that the sentencing judge appropriately fixed the parole eligibility date and that the sentence represented a sound exercise of discretion. The court found that the sentence properly reflected the criminality involved in serious drug offending commenced weeks after release on parole for a serious offence of violence. The court concluded that the applicant had not established any specific error or that the sentence imposed was manifestly excessive. Therefore, the court ordered that leave to appeal be refused.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

The applicant seeks leave to appeal his sentence. Should leave be granted, the applicant relies on two grounds. First, that the sentencing judge erred in fixing the parole eligibility date. Second, that the sentence imposed was manifestly excessive.Background The applicant was born in 1981. He has an extensive past criminal history with multiple entries for drug and other offences. He has been the recipient of probation and community service orders and a suspended sentence. He breached those orders. On 23 March 2017, the applicant was sentenced to five years, six months imprisonment for acts intended to cause grievous bodily harm or transmit serious disease. A parole eligibility date was set at 23 September 2018. On 26 August 2019, the applicant was released on parole. By that stage, the applicant had served over three years and two months in custody.Offences The applicant commenced trafficking in dangerous drugs some six weeks after his release on parole. For approximately four months, between 6 October 2019 and 15 February 2020, the applicant trafficked primarily in methylamphetamine although he also supplied gamma hydroxybutyrate acid. The applicant’s trafficking involved supplying to at least 12 customers, some of whom were on-selling drugs to their own customers. The applicant engaged the services of others to assist in the distribution of the drugs. The applicant sought out customers. On occasions, the applicant provided drugs on credit. The applicant pursued outstanding debts, making threats of violence in the event those debts remained unpaid.Sentencing remarks The sentencing judge noted that the applicant had a criminal history containing entries for drug offences, property offences, weapons offences and offences of violence. Of considerable concern, his history included an entry in October 2013 for entering a dwelling with intent by breaking at night whilst armed in company and the entry in March 2017 for acts intended to cause grievous bodily harm and entering a dwelling with intent by breaking at night. The sentencing judge recorded that the trafficking was for about four months during which the applicant trafficked in wholesale amounts primarily of methylamphetamine but also was able to source and supply large amounts of gamma hydroxybutyrate acid. The aggravated circumstances of the trafficking included supplying methylamphetamine to at least 12 customers of whom seven at least were on-selling the drug. Further, his conduct, although in part to feed his own drug addiction, was commercially motivated. The applicant engaged the services of others; actively sought out large-scale sales; provided drugs on credit or in exchange for other rewards; and, engaged in threats of violence towards those who owed him debt. Concerningly, the trafficking count commenced one month and one week after the applicant was released on parole. The sentencing judge recorded that the applicant had now been in custody for 14 months since his arrest, with a further 11 months to serve on the earlier sentence and a requirement to serve a further ten months as a result of the cancellation of his parole. As such, the applicant would serve 21 months before any sentence imposed for this offending could commence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground is also not made out.Conclusion As the applicant has not established any specific error or that the sentence imposed was manifestly excessive, leave to appeal should be refused.Order I would order that leave to appeal be refused.

Ratio Decidendi

Legal Principle Established

Further, the sentencing judge appropriately took into account the time that the applicant had served in custody and would serve in custody before commencement of the sentence, when fixing the parole eligibility date. The sentencing judge specifically acknowledged that the applicant would be required to serve additional time as a result of the cancellation of his parole.Consideration A consideration of the sentencing remarks supports a conclusion that the parole eligibility date was fixed by the sentencing judge after a proper consideration of all of the relevant circumstances. There is no basis to conclude that it arose as a result of any misunderstanding of the sentencing submissions or through inadvertence. The sentencing judge specifically observed that the applicant had been in custody for 14 months, had a further 11 months to serve in respect of that sentence and would be required to serve a further 10 months as a result of the cancellation of his parole, such that he would serve 21 months before the commencement of any sentence imposed by the sentencing judge. The sentencing judge further recorded that by the time the sentence commenced, the applicant would have been in custody for nearly three years. The sentencing judge also expressly recorded that it was intended that the applicant serve two and a half years in custody from the date of sentence before any parole eligibility date. There is no substance to ground one. A consideration of the circumstances also supports a conclusion that a sentence of six years imprisonment, to be served cumulatively on the existing sentence of imprisonment fell well within a sound exercise of the sentencing discretion. As the sentencing judge rightly observed, the applicant’s serious trafficking in more than one dangerous drug over a four month period throughout which the applicant was subject to parole would itself warrant a sentence in the order of seven to eight years imprisonment. A reduction in that sentence to six years imprisonment properly reflected the mitigating factors and the consequence of the imposition of a cumulative period of imprisonment. Once it is found that a cumulative period of six years imprisonment fell well within a sound exercise of the sentencing discretion, there is no basis to conclude that a requirement that the applicant serve a further two and a half years from the date of sentence before eligibility for parole was itself manifestly excessive. Such a requirement properly reflected the criminality involved in serious drug offending commenced weeks after release on parole for a serious offence of violence. Whilst a consequence of the setting of the parole eligibility date is that the applicant will serve more than 50 per cent of the overall sentence in actual custody, that consequence flows from engaging in serious criminal offending whilst on parole. Such a requirement did not constitute a crushing sentence. It also did not evidence any misapplication of sentencing principles.

CITATION:	R v Denning [2022] QCA 72
PARTIES:	R v DENNING, Sean Owen (applicant)
FILE NO/S:	CA No 269 of 2021 SC No 761 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 22 October 2021 (Martin J)
DELIVERED ON:	10 May 2022
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2022
JUDGES:	Sofronoff P and Bond JA and Boddice J
ORDER:	Leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in dangerous drugs and one count of possessing a thing used in connection with trafficking in a dangerous drug – where the applicant was sentenced to six years imprisonment with respect to the trafficking count – where the applicant was convicted and not further punished with respect to the second count – where the sentence imposed was to be served cumulatively on a five year, six month sentence imposed in 2017 – where parole eligibility was set at April 2024 – where the applicant has an extensive criminal history, including previous drug offences – where the period of trafficking commenced six weeks after the applicant was released on parole – where the trafficking was at wholesale level – where the applicant provided drugs on credit and where the applicant pursued outstanding drug debts with threats of violence – where the applicant submits that the sentencing judge erred in setting the parole eligibility date, being fixed at more than 50 per cent of the overall head sentence – whether the sentencing judge erred with respect to the fixing of the parole eligibility date – whether the sentence represented a sound exercise of discretion – whether the sentence properly reflected the criminality involved in serious drug offending – whether the sentence is manifestly excessive R v Berns[2020] QCA 36, considered R v Byrne [2020] QCA 173, considered R v Neilson[2014] QCA 221, considered R v Nunn[2019] QCA 100, considered
COUNSEL:	S C Holt QC for the applicant S J Bain for the respondent
SOLICITORS:	Owens & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent