R v. Donnelly and Corbic - [2007] QCA 77

SUPREME COURT OF QUEENSLAND

CITATION:

R v Donnelly and Corbic [2007] QCA 77

PARTIES:

R
v
DONNELLY, John Joseph
(first applicant/appellant)

R
v
CORBIC, Sharif Rahman
(second applicant/appellant)

FILE NO/S:

CA No 207 of 2006
CA No 219 of 2006
SC No 540 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2007

JUDGES:
Jerrard JA, Keane JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring with the orders made

ORDER:

1.    That the applications for leave to appeal and the appeals be allowed

2.    That the sentences in respect of Count 1 be set aside and sentences of six years be substituted for them

3.    That the sentences be varied such that the applicants’ parole eligibility dates be fixed at 11 July 2008

CATCHWORDS:

CRIMINAL LAW − APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION − APPEAL AND NEW TRIAL − APPEAL AGAINST SENTENCE − APPEAL BY CONVICTED PERSONS − APPLICATIONS TO REDUCE SENTENCE − WHEN GRANTED − GENERALLY − where applicants pleaded guilty to unlawful supply and trafficking of 3,4- methylenedioxymethamphetamine (“MDMA”), trafficking in the dangerous drug ephedrine and unlawful supply and production of methylamphetamine − where one applicant pleaded guilty to another count of supply of MDMA − where sentences imposed − whether substantial trafficking had occurred − whether sentences imposed were manifestly excessive

R v Murray [2006] QCA 154; CA No 47 of 2006, 12 May 2006, cited
R v Rizk [2004] QCA 382; CA no 224 of 2004, 15 October 2004, cited
R v Van Ryan, unreported, Supreme Court of Queensland, Philippides J, 31 August 2005, cited

COUNSEL:

D R MacKenzie for the respondent
The applicants/appellants appeared on their own behalf

SOLICITORS:

Director of Public Prosecutions (Qld) for the respondent
The applicants/appellants appeared on their own behalf

JERRARD JA: In this matter I have read the reasons for judgment and orders proposed by Muir J, and agree with those reasons and orders. I add that the applicants’ involvement in that offence of trafficking in ephedrine was discovered in late 2000 and early 2001, when officers of the Crime and Misconduct Commission were conducting an investigation into drug activity on the Gold Coast. During that time Mr Donnelly was identified as a source of ephedrine, and the investigators were informed that the applicants were importing kilogram quantities of that drug from a Canadian supplier, sent to backpackers on the Gold Coast, and then delivered to Mr Donnelly.

One of those deliveries was intercepted on 28 August 2001, and found to contain a calculated weight of ephedrine of 2416.9 grams, or 2.5 kilos. When Mr Donnelly turned up at a house to which the package had been delivered, he was spoken to by police, but denied any knowledge or involvement in that importation. He was, however, implicated by another offender, who informed the police that Mr Donnelly and his…

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.

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Details

Case: [2007] QCA 77
Decision Date: 16 March 2007

CaseChat Overview and Summary

In the case of R v. Donnelly and Corbic, the applicants were convicted for their involvement in the unlawful supply and trafficking of MDMA, the trafficking of ephedrine, and the unlawful supply and production of methylamphetamine. Donnelly also pleaded guilty to another count of MDMA supply. The applicants were sentenced, and subsequently sought to appeal against the sentences they received. The legal issues before the court were whether the sentences were manifestly excessive and whether substantial trafficking had occurred. The court had to consider the nature and extent of the drug trafficking activities, as well as the appropriate quantum of the sentences imposed.

The court found that the sentences imposed on the applicants were manifestly excessive given the circumstances of the case. The court recognised that while the offences involved significant quantities of drugs, the sentences did not reflect the lesser roles of the applicants in the trafficking operations. The court emphasised the importance of proportionality in sentencing and concluded that the original sentences did not achieve the appropriate balance between punishment and deterrence. The court further found that the applicants’ involvement, while significant, did not amount to substantial trafficking as defined by the legislation.

As a result, the court allowed the applications for leave to appeal and the appeals themselves. The sentences imposed in respect of Count 1 were set aside, and sentences of six years were substituted. Additionally, the sentences were varied to ensure that the applicants’ parole eligibility dates were fixed at 11 July 2008. This decision underscores the need for courts to carefully consider the individual circumstances of each case when determining the appropriate sentence.

Orders

Orders of the court

1. That the applications for leave to appeal and the appeals be allowed

2. That the sentences in respect of Count 1 be set aside and sentences of six years be substituted for them

3. That the sentences be varied such that the applicants’ parole eligibility dates be fixed at 11 July 2008

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.

CITATION:	R v Donnelly and Corbic [2007] QCA 77
PARTIES:	R v DONNELLY, John Joseph (first applicant/appellant) R v CORBIC, Sharif Rahman (second applicant/appellant)
FILE NO/S:	CA No 207 of 2006 CA No 219 of 2006 SC No 540 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2007
JUDGES:	Jerrard JA, Keane JA and Muir J Separate reasons for judgment of each member of the Court, each concurring with the orders made
ORDER:	1. That the applications for leave to appeal and the appeals be allowed 2. That the sentences in respect of Count 1 be set aside and sentences of six years be substituted for them 3. That the sentences be varied such that the applicants’ parole eligibility dates be fixed at 11 July 2008
CATCHWORDS:	CRIMINAL LAW − APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION − APPEAL AND NEW TRIAL − APPEAL AGAINST SENTENCE − APPEAL BY CONVICTED PERSONS − APPLICATIONS TO REDUCE SENTENCE − WHEN GRANTED − GENERALLY − where applicants pleaded guilty to unlawful supply and trafficking of 3,4- methylenedioxymethamphetamine (“MDMA”), trafficking in the dangerous drug ephedrine and unlawful supply and production of methylamphetamine − where one applicant pleaded guilty to another count of supply of MDMA − where sentences imposed − whether substantial trafficking had occurred − whether sentences imposed were manifestly excessive R v Murray [2006] QCA 154; CA No 47 of 2006, 12 May 2006, cited R v Rizk [2004] QCA 382; CA no 224 of 2004, 15 October 2004, cited R v Van Ryan, unreported, Supreme Court of Queensland, Philippides J, 31 August 2005, cited
COUNSEL:	D R MacKenzie for the respondent The applicants/appellants appeared on their own behalf
SOLICITORS:	Director of Public Prosecutions (Qld) for the respondent The applicants/appellants appeared on their own behalf