R v Dolan

[2008] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dolan [2008] QCA 41

PARTIES:

R
v
DOLAN, Nicholas Anthony
(applicant/appellant)

FILE NO/S:

CA No 373 of 2007
SC No 772 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

5 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2008

JUDGES:

McMurdo P, Fraser JA and Mullins J
Separate reasons for judgment of each member of the Court, McMurdo P and Fraser JA concurring as to the orders made, Mullins J dissenting in part

ORDER:

1.   Application for leave to appeal granted

2.   Appeal allowed

3.   Sentence imposed on 14 December 2007 set aside and instead substitute order that applicant be sentenced on count 1, to two years imprisonment and on each of counts 2 and 3, to three months imprisonment.

4.   The date the applicant be released on parole is fixed at 5 March 2008.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – where appellant pleaded guilty to trafficking and possessing cannabis sativa and possessing money knowingly obtained from trafficking – where trafficking conviction based solely upon appellant's admissions – where the appellant, who was 23 at the time of the offence, had excellent prospects of rehabilitation – where appellant sentenced to two years imprisonment, suspended after four months, with an operational period of three years – where sentencing judge did not impose individual sentences for each count on the indictment – whether judge erred by not imposing individual sentences for each count, requiring the Court of Appeal to re-exercise the sentencing discretion

COUNSEL:

The appellant appeared on his own behalf
R G Martin SC appeared for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant, Nicholas Anthony Dolan, pleaded guilty on 14 December 2007 to one count of trafficking in cannabis sativa, count 1;  possessing cannabis sativa, count 2;  and possessing a sum of money knowingly obtained from trafficking in a dangerous drug, count 3.  He was convicted and sentenced to two years imprisonment, suspended after serving four months, with an operational period of three years.  It follows that he is presently due for release on 14 April 2008.

He seeks leave to appeal against his sentence, contending in his application that it was manifestly excessive and that the learned sentencing judge erred in failing to specify what count the sentence related to.

Although Mr Dolan appears self-represented today by telephone from the Correctional Centre at which he is incarcerated, his Counsel at sentence, Mr P E Smith, has prepared, pro bono, a written outline of submissions.  Mr Smith also emphasises that the judge erred in failing to give sufficient weight to the rehabilitative efforts and prospects of Mr Dolan and the detrimental impact of a custodial sentence on these matters.

The circumstances surrounding the offences…