R v Engellenner - [2012] QCA 6

SUPREME COURT OF QUEENSLAND

CITATION:

R v Engellenner [2012] QCA 6

PARTIES:

R
v
ENGELLENNER, Danial Stephen
(applicant)

FILE NO/S:

CA No 314 of 2011
SC No 1055 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

9 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2012

JUDGES:

Chief Justice, White JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Delivered ex tempore on 9 February 2012:

1. Application for leave to appeal against sentence allowed

2. Appeal allowed to the extent of substituting a parole release date of 9 February 2012

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to three years’ imprisonment for trafficking in a schedule 1 drug – where parole release date set six months from date of sentence – where applicant pleaded guilty – where applicant was 18 at time of offence – where applicant had no relevant criminal history – where applicant gained no monetary reward from drug dealing – where applicant had not reoffended while on bail – where applicant had obtained full-time employment – whether the sentence imposed was manifestly excessive in all the circumstances

R v Baker[2011] QCA 104, considered
R v Casagrande[2009] QCA 1, considered
R v Challacombe[2009] QCA 314, distinguished

COUNSEL:

The applicant appeared on his own behalf
C N Marco for the respondent

SOLICITORS:

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

CHIEF JUSTICE: I'll invite Justice Atkinson to deliver the first Judgment.

ATKINSON J: The applicant, Danial Engellenner, has made an application for leave to appeal a sentence imposed upon him on 26 October 2011 in the Supreme Court. He was sentenced to three years’ imprisonment on count 1 on the indictment, trafficking in a dangerous drug, and with regard to count 2 on the indictment, possessing anything used in the commission of a crime defined in Part 2 of the Drugs Misuse Act 1986, he was convicted and not further punished. His parole release date was set at 26 April 2012, giving him a period of six months’ imprisonment before his release on parole.

The circumstances of his offending were set out in a schedule tendered at the sentencing hearing. In November 2009, the Queensland Police Service commenced an operation in relation to suspected drug trafficking in the Sunshine Coast region. The applicant was not the primary target of that investigation; however, he had telephone contact with the primary target, Matthew Champion, whose mobile phone service was being lawfully intercepted by police.

Telephone conversations and text messages between 24 December 2009 and 19 January 2010 between Champion and the applicant revealed that the applicant was sourcing tablets containing 3,4-methylenedioxymethamphetamine (“MDMA” or “ecstasy”) from Champion to supply to others. The…

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 Engellenner

Details

AGLC: R v Engellenner [2012] QCA 6
Case: [2012] QCA 6
Decision Date: 9 February 2012

CaseChat Overview and Summary

The case of R v Engellenner involved the appellant appealing against the sentence imposed by the lower court. The appellant, who was 18 at the time of the offence, was found guilty of trafficking in a schedule 1 drug and was sentenced to three years’ imprisonment. The court set the parole release date six months from the date of sentence. The appeal was based on the argument that the sentence was manifestly excessive, given the appellant's age, lack of criminal history, no monetary gain from the offence, and positive steps taken while on bail, such as securing full-time employment.

The court was required to determine whether the sentence was manifestly excessive or inadequate in the circumstances of the case. The appellant's counsel argued that the sentence was disproportionate considering the mitigating factors present in the case. The prosecution maintained that the sentence was appropriate and reflected the seriousness of the offence. The court had to weigh the aggravating and mitigating factors, and consider the principles of sentencing relevant to the case.

The court allowed the appeal, substituting the parole release date of 9 February 2012. The judge found that the original parole release date of six months from the date of sentence was manifestly excessive, given the appellant's age, lack of criminal history, and the positive steps taken while on bail. The court recognised the seriousness of the offence but also acknowledged the mitigating factors and the appellant's efforts to turn their life around. The court concluded that the original sentence, while not inappropriate, was excessively harsh in terms of the parole release date. The court ordered that the appellant's parole release date be set to 9 February 2012, the date on which the appeal was heard.

Orders

Orders of the court

Delivered ex tempore on 9 February 2012:

1. Application for leave to appeal against sentence allowed

2. Appeal allowed to the extent of substituting a parole release date of 9 February 2012

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Engellenner [2012] QCA 6
PARTIES:	R v ENGELLENNER, Danial Stephen (applicant)
FILE NO/S:	CA No 314 of 2011 SC No 1055 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	9 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2012
JUDGES:	Chief Justice, White JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Delivered ex tempore on 9 February 2012: 1. Application for leave to appeal against sentence allowed 2. Appeal allowed to the extent of substituting a parole release date of 9 February 2012
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to three years’ imprisonment for trafficking in a schedule 1 drug – where parole release date set six months from date of sentence – where applicant pleaded guilty – where applicant was 18 at time of offence – where applicant had no relevant criminal history – where applicant gained no monetary reward from drug dealing – where applicant had not reoffended while on bail – where applicant had obtained full-time employment – whether the sentence imposed was manifestly excessive in all the circumstances R v Baker[2011] QCA 104, considered R v Casagrande[2009] QCA 1, considered R v Challacombe[2009] QCA 314, distinguished
COUNSEL:	The applicant appeared on his own behalf C N Marco for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent