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R v. Jenkins, Rollason & Brophy

R v. Jenkins, Rollason & Brophy

Case [2008] QCA 369 28 November 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Jenkins, Rollason & Brophy [2008] QCA 369

PARTIES:

R
v
JENKINS, Darren John
(applicant)

R
v
ROLLASON, John Leslie
(applicant/appellant)

R
v
BROPHY, Jason Edward
(applicant)

FILE NO/S:

CA No 362 of 2007
CA No 375 of 2007
CA No 377 of 2007
SC No 475 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Applications

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2008

JUDGES:

McMurdo P, Jones and Daubney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 362 of 2007, R v Darren John Jenkins, the application for leave to appeal is refused.1.

In CA No 375 of 2007, R v John Leslie Rollason, the application for leave to appeal against sentence is granted, the appeal allowed to the limited extent of setting aside the order that he be imprisoned for a period of 12 years on count 2 of Indictment 475 of 2006 and substituting an order that he be imprisoned for a period of 11 years.The original sentence is otherwise confirmed. 2.

In CA No 377 of 2007, R v Jason Edward Brophy, the application for leave to appeal against sentence is refused.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – three applicants involved in large scale ecstasy trafficking ring – Brophy was head of operation in Australia, organising purchase of ecstasy once it was imported – Rollason organised distribution of tablets to dealers for sale – Jenkins involved in transport of and payment for ecstasy – Rollason pleaded guilty to one count of trafficking and sentenced to 12 years cumulative upon an earlier sentence – Brophy found guilty of one count of trafficking and three counts of supply, after a trial, and was sentenced to 17 years imprisonment – Jenkins found guilty of one count each of trafficking and supply after a trial and was sentenced to 10 years imprisonment – whether sentences were manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – Rollason's 12 year sentence was cumulative on his earlier 10 year sentence for trafficking drugs because the offence was committed while he was on parole – effect of a 12 year sentence was a 22 year total sentence and about 13 years and nine months imprisonment since arrest before parole eligibility – judge was erroneously informed that Rollason's total sentence would be 21 years – this error caused the Court of Appeal to re-sentence Rollason to 11 years imprisonment cumulative so that he would serve just over 13 and a half years before becoming eligible for parole

Drugs Misuse Act 1986 (Qld), s 5(b), Sch 2
Penalties and Sentences Act 1992 (Qld), s 156A

Mill v The Queen (1988) 166 CLR 59;

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. Jenkins, Rollason & Brophy

Details

AGLC: R v Jenkins, Rollason and Brophy [2008] QCA 369
Case: [2008] QCA 369
Decision Date: 28 November 2008

CaseChat Overview and Summary

The applicants, Jenkins, Rollason, and Brophy, were all involved in a large-scale ecstasy trafficking operation. Brophy was the head of the operation in Australia, responsible for arranging the purchase of ecstasy once it had been imported. Rollason organised the distribution of the tablets to dealers for sale, and Jenkins was involved in the transportation of the ecstasy and payment for it. Following a series of trials and pleas, the applicants were sentenced to terms of imprisonment for their respective roles in the operation. Jenkins was sentenced to 10 years imprisonment, Rollason to 12 years cumulative on an earlier 10-year sentence, and Brophy to 17 years imprisonment. The applicants appealed against their sentences, arguing that they were manifestly excessive.

The court was required to determine whether the sentences imposed on the applicants were manifestly excessive or inadequate. In the case of Rollason, the court also had to address the error made in the sentencing process, whereby the judge was erroneously informed that Rollason's total sentence would be 21 years. This error led to the Court of Appeal re-sentencing Rollason to 11 years imprisonment cumulative, so that he would serve just over 13 and a half years before becoming eligible for parole.

The court found that the sentences imposed on Jenkins and Brophy were not manifestly excessive or inadequate. The court considered the nature and circumstances of the offences, the roles of the applicants within the trafficking operation, and the need for deterrence and denunciation. The court also considered the impact of the offences on the community and the need for punishment and rehabilitation. In the case of Rollason, the court found that the error in the sentencing process did not justify interference with the sentence, but that the sentence should be corrected to reflect the correct total sentence of 21 years. The court allowed the appeal in respect of Rollason's sentence, setting aside the order that he be imprisoned for a period of 12 years and substituting an order that he be imprisoned for a period of 11 years.

The final orders were that the application for leave to appeal was refused in the case of Jenkins, the application for leave to appeal against sentence was granted in the case of Rollason, and the appeal was allowed to the limited extent of setting aside the order that Rollason be imprisoned for a period of 12 years and substituting an order that he be imprisoned for a period of 11 years. The original sentence was otherwise confirmed. The application for leave to appeal against sentence was refused in the case of Brophy.

Orders

Orders of the court

In CA No 362 of 2007, R v Darren John Jenkins, the application for leave to appeal is refused.1.

In CA No 375 of 2007, R v John Leslie Rollason, the application for leave to appeal against sentence is granted, the appeal allowed to the limited extent of setting aside the order that he be imprisoned for a period of 12 years on count 2 of Indictment 475 of 2006 and substituting an order that he be imprisoned for a period of 11 years.The original sentence is otherwise confirmed. 2.

In CA No 377 of 2007, R v Jason Edward Brophy, the application for leave to appeal against sentence is refused.3.

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 Jenkins, Rollason and Brophy [2008] QCA 369

Most Recent Citation

R v Sharkey; ex parte [2009] QCA 118

Cases citing this decision · 6 of 6 shown

R v Stevens
[2017] QCA 61 Para 9

…ther similar or more serious offenders the applicant referred to the authorities of R v Jenkins, Rollason and Brophy [367] and R v Barker .[368] [367][2008] QCA 369. [368][2015] QCA 215. The sentence imposed…
R v Robinson
[2010] QCA 377 Para 1

…igating factors, the judge determined that a 10 year cumulative sentence was appropriate. The judge fixed parole eligibility date at 19 May 2028. [14][2008] QCA 369 [15][2007] QCA 266. [16][2008] QCA 332.…
R v Feakes
[2009] QCA 376 Para 1

…ndictment No 1219 of 2007, Wilson J, 26 February 2008. [8]Indictment No 475 of 2006, 2 February 2007. On appeal, see R v Jenkins, Rollason and Brophy [2008] QCA 369; Jenkins' and Brophy's appeals were dismissed, but Rollason's appeal was allowed and his sentence reduced from 12 years to 11 years. Green did not ap…
R v Sullivan
[2009] QCA 344 Para 1

…sales and attempted sales of stock …" The deals that he did, or attempted to do, involved between a thousand and ten thousand tablets per deal. [11][2008] QCA 369.…
R v Rollason
[2009] QCA 157 Para 1

…f indictment 475 of 2006, and substituting an order that he be imprisoned for a period of 11 years. His original sentence was otherwise confirmed. [1][2008] QCA 369.…
R v Sharkey; ex parte
[2009] QCA 118

…CA 94, followed R v Bradforth [2003] QCA 183, considered R v Elizalde [2006] QCA 330, considered R v Jenkins, Rollason and Brophy [2008] QCA 369, cited R v Johnson [2007] QCA 433, cited R v Melano; ex parte Attorney-General of Queensland [1995] 2 Qd R 186; [1994] QCA 523, followed R v Rizk & Raciti [2004] QCA 359…

View all 6 citing cases →

Cases cited in this decision · 14 of 14 shown

R v. Bosnjak
[2007] QCA 325 Para 1

…lesale dealer in a large scale sophisticated trafficking business in MDMA for significant commercial gain. [11][2003] QCA 183. [12][2007] QCA 93. [13][2007] QCA 325.…
R v Assurson
[2007] QCA 273 Para 1

…tions at the time of arrest. The judge sentenced Jenkins for what he might have achieved if his trafficking had continued. [4](2007) 174 A Crim R 78; [2007] QCA 273 at 81-82 [19].…
R v. Nabhan ; R v Kostopoulos
[2007] QCA 266 Para 1

…t was manifestly excessive; a sentence in the range of 13 to 14 years imprisonment should be substituted. [14][2007] QCA 205. [15][2004] QCA 398. [16][2007] QCA 266. [17][2006] QCA 311.…
R v Cannon
[2007] QCA 205 Para 1

…mposed on Brophy of 17 years imprisonment was manifestly excessive; a sentence in the range of 13 to 14 years imprisonment should be substituted. [14][2007] QCA 205. [15][2004] QCA 398. [16][2007] QCA 266. [17][2006] QCA 311.…
R v Saunders
[2007] QCA 93 Para 1

…nvolvement as a wholesale dealer in a large scale sophisticated trafficking business in MDMA for significant commercial gain. [11][2003] QCA 183. [12][2007] QCA 93. [13][2007] QCA 325.…
R v. Donnelly and Corbic
[2007] QCA 77 Para 1

…that he had been convicted of a serious violent offence under Pt 9A Penalties and Sentences Act 1992 (Qld). [5][2004] QCA 382. [6][2006] QCA 154. [7][2007] QCA 77.…
R v Murray
[2006] QCA 154 Para 1

…thout a declaration that he had been convicted of a serious violent offence under Pt 9A Penalties and Sentences Act 1992 (Qld). [5][2004] QCA 382. [6][2006] QCA 154. [7][2007] QCA 77.…
R v Lowe
[2004] QCA 398 Para 1

…17 years imprisonment was manifestly excessive; a sentence in the range of 13 to 14 years imprisonment should be substituted. [14][2007] QCA 205. [15][2004] QCA 398. [16][2007] QCA 266. [17][2006] QCA 311.…
R v Rizk
[2004] QCA 382 Para 1

…ars imprisonment without a declaration that he had been convicted of a serious violent offence under Pt 9A Penalties and Sentences Act 1992 (Qld). [5][2004] QCA 382. [6][2006] QCA 154. [7][2007] QCA 77.…
R v Bradforth
[2003] QCA 183 Para 1

…knowing and active involvement as a wholesale dealer in a large scale sophisticated trafficking business in MDMA for significant commercial gain. [11][2003] QCA 183. [12][2007] QCA 93. [13][2007] QCA 325.…
Gray v Motor Accident Commission
[1998] HCA 70 Para 1

…l v The Queen .[27] In these circumstances, the sentence imposed on Rollason for the present offence was manifestly excessive. [27](1988) 166 CLR 59; [1998] HCA 70.…
R v Walton; ex parte Attorney-General of Queensland
[1997] QCA 411 Para 1

…sonment was at the top or even the mid-point of the appropriate range, this Court noting that the penalty was not "a particularly harsh one".[26] [24][1997] QCA 411. [25][1997] QCA 411 at pp 2-3. [26][1997] QCA 411 at p 10.…
Mill v The Queen
[1988] HCA 70

…eligible for parole Drugs Misuse Act 1986 (Qld), s 5(b), Sch 2 Penalties and Sentences Act 1992 (Qld), s 156A Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70, applied R v Assurson (2007) 174 A Crim R 78; [2007] QCA 273, applied R v Bosnjak [2007] QCA 325, compared R v Bradforth [2003] QCA 183, compared R v Cannon [2007]…
R v Omer-Noori
[2006] QCA 311 Para 1

…essive; a sentence in the range of 13 to 14 years imprisonment should be substituted. [14][2007] QCA 205. [15][2004] QCA 398. [16][2007] QCA 266. [17][2006] QCA 311.…

Legislation cited in this decision · 2

Drugs Misuse Act 1986 (Qld)
5(b) 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
156A 2 mentions (from Para 1)

CITATION:	R v Jenkins, Rollason & Brophy [2008] QCA 369
PARTIES:	R v JENKINS, Darren John (applicant) R v ROLLASON, John Leslie (applicant/appellant) R v BROPHY, Jason Edward (applicant)
FILE NO/S:	CA No 362 of 2007 CA No 375 of 2007 CA No 377 of 2007 SC No 475 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Applications
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2008
JUDGES:	McMurdo P, Jones and Daubney JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	*In CA No 362 of 2007, R v Darren John Jenkins,* the application for leave to appeal is refused.*1. In CA No 375 of 2007, R v John Leslie Rollason,* the application for leave to appeal against sentence is granted, the appeal allowed to the limited extent of setting aside the order that he be imprisoned for a period of 12 years on count 2 of Indictment 475 of 2006 and substituting an order that he be imprisoned for a period of 11 years.The original sentence is otherwise confirmed. 2. *In CA No 377 of 2007, R v Jason Edward Brophy,* the application for leave to appeal against sentence is refused.**3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – three applicants involved in large scale ecstasy trafficking ring – Brophy was head of operation in Australia, organising purchase of ecstasy once it was imported – Rollason organised distribution of tablets to dealers for sale – Jenkins involved in transport of and payment for ecstasy – Rollason pleaded guilty to one count of trafficking and sentenced to 12 years cumulative upon an earlier sentence – Brophy found guilty of one count of trafficking and three counts of supply, after a trial, and was sentenced to 17 years imprisonment – Jenkins found guilty of one count each of trafficking and supply after a trial and was sentenced to 10 years imprisonment – whether sentences were manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – Rollason's 12 year sentence was cumulative on his earlier 10 year sentence for trafficking drugs because the offence was committed while he was on parole – effect of a 12 year sentence was a 22 year total sentence and about 13 years and nine months imprisonment since arrest before parole eligibility – judge was erroneously informed that Rollason's total sentence would be 21 years – this error caused the Court of Appeal to re-sentence Rollason to 11 years imprisonment cumulative so that he would serve just over 13 and a half years before becoming eligible for parole Drugs Misuse Act 1986 (Qld), s 5(b), Sch 2 Penalties and Sentences Act 1992 (Qld), s 156A Mill v The Queen (1988) 166 CLR 59;