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R v Norden

R v Norden

Case [2009] QCA 42 6 March 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Norden [2009] QCA 42

PARTIES:

R
v
NORDEN, Anthony James
(applicant/appellant)

FILE NO/S:

CA No 260 of 2008
SC No 436 of 2008
SC No 363 of 2006
SC No 1081 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2009

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal allowed
2. Appeal against sentence on the possession and supply counts allowed
3. Sentences for the possession and supply counts varied by reducing the term of imprisonment in each case to four months and deleting the probation order
4. Activation of the whole of the suspended imprisonment on the receiving count is not disturbed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE: WHAT CONSTITUTES – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on pleas of guilty of one count of possessing methylamphetamine, one count of supplying methylamphetamine and one count of receiving stolen property – where, on the supply and possession counts, applicant sentenced to two years probation – where, on the receiving count, applicant sentenced to 12 months imprisonment, wholly suspended for an operational period of two years – where applicant twice convicted of further offences during operational period and while on probation – where, in sentencing for the breach of probation and breach of suspended sentence, learned sentencing judge revoked the probation order and re-sentenced applicant on the supply and possession counts to 12 months imprisonment, to be followed by two years probation; and, on the receiving count, activated the whole of the suspended imprisonment pursuant to s 147(1)(b) of the Penalties and Sentences Act 1992 (Qld), with a parole release date set at the end of the term of imprisonment – where applicant appealed on the ground that the combined effect of activating the suspended sentence and re-sentencing on the supply and possession counts was to impose a manifestly excessive sentence – whether this was a proper basis of appeal – whether the activation of the suspended sentence and the re-sentencing should be dealt with separately – whether activation of a suspended sentence is a “sentence” passed on conviction as defined in s 668(1) of the Criminal Code – whether decision to set parole release date is part of the decision under s 147(2) of Penalties and Sentences Act 1992 (Qld), or a separate exercise of discretion – whether learned sentencing judge erred in forming the view that it was not unjust to impose the whole of the suspended imprisonment – whether sentence imposed on supply and possession counts manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 147(1)(b), s 147(2), s 147(3), ss 160-160H
Criminal Code 1899 (Qld), s 668D(1)(c)

R v Blow [1963] QWN 1, applied
R v Bowen [1997] 2…

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 Norden

Details

AGLC: R v Norden [2009] QCA 42
Case: [2009] QCA 42
Decision Date: 6 March 2009

CaseChat Overview and Summary

The case of R v Norden involved the appellant, who had been convicted on pleas of guilty of possessing methylamphetamine, supplying methylamphetamine, and receiving stolen property. The Queensland District Court sentenced the appellant to two years probation on the possession and supply counts and a wholly suspended 12-month imprisonment term for the receiving count, operational for two years. During this operational period, the appellant was convicted of further offences and breached both the probation and the suspended sentence. Consequently, the sentencing judge revoked the probation order and re-sentenced the appellant to 12 months imprisonment on the possession and supply counts, followed by two years probation. The judge also activated the entire suspended sentence on the receiving count, setting the parole release date at the end of the imprisonment term. The appellant appealed against the combined effect of these sentences, arguing that they were manifestly excessive.

The appeal raised several legal issues, including whether the activation of the suspended sentence and the re-sentencing on the supply and possession counts constituted a proper basis for appeal. Another issue was whether these actions should be dealt with separately. The court also needed to determine if the activation of the suspended sentence was a "sentence" passed on conviction, as defined in the Criminal Code. Additionally, it was necessary to ascertain whether the decision to set the parole release date was part of the decision under the Penalties and Sentences Act or a separate exercise of discretion. Finally, the court had to consider whether the sentencing judge erred in concluding that it was not unjust to impose the whole of the suspended imprisonment and whether the sentence on the possession and supply counts was manifestly excessive.

The court found that the appeal was properly grounded, as the activation of the suspended sentence and the re-sentencing on the possession and supply counts constituted separate sentences. The court clarified that the activation of a suspended sentence is indeed a "sentence" passed on conviction. It also ruled that the decision to set the parole release date was a separate exercise of discretion. The court determined that the sentencing judge did not err in finding that it was not unjust to impose the whole of the suspended imprisonment. However, it concluded that the sentence imposed on the possession and supply counts was manifestly excessive. The court allowed the application for leave to appeal and varied the sentence on the possession and supply counts by reducing the term of imprisonment to four months and deleting the probation order. The activation of the whole of the suspended imprisonment on the receiving count was not disturbed.

The final orders of the court were to allow the application for leave to appeal, dismiss the appeal against the sentence on the receiving count, allow the appeal against the sentence on the possession and supply counts, and vary the sentences on those counts by reducing the term of imprisonment to four months and deleting the probation order. The activation of the whole of the suspended imprisonment on the receiving count remained unchanged.

Orders

Orders of the court

1. Application for leave to appeal allowed

2. Appeal against sentence on the possession and supply counts allowed

3. Sentences for the possession and supply counts varied by reducing the term of imprisonment in each case to four months and deleting the probation order

4. Activation of the whole of the suspended imprisonment on the receiving count is not disturbed

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 Norden [2009] QCA 42

Most Recent Citation

R v Wildey [2009] QCA 189

Cases citing this decision · 14 of 14 shown

R v Herberts
[2023] QSC 157 Para 13

…unjust to order you to serve part or all of the remainder of the suspended sentence was confirmed by Holmes JA, as her Honour then was, in R v Norden [2009] QCA 42 at [13] to [15].…
R v Gerhardt
[2019] QCA 283 Para 1

…ed to imprisonment with an order suspending the imprisonment may appeal against a sentence imposed upon the activation of the suspended sentence. [14][2009] QCA 42.…
R v HBP
[2017] QCA 130

…s 280 Penalties and Sentences Act 1992 (Qld), s 160B R v Newman [2008] QCA 147, cited R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited COUNSEL: J Lodziak for the applicant M R Byrne QC for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the res…
Doolan v Legal Practitioners Admissions Board
[2016] QCAT 98 Para 12

…n sometimes mitigate (but rarely justify) misconduct (not involving dishonesty) it can also disqualify.[34] [34]See Queensland Law Society v Wakeling [2009] QCA 42 [25].…
R v Kendrick
[2015] QCA 27 Para 5

…mination of that discretionary judgment. [15]That situation does not alter simply because the order is made in combination with others.”” [64][2009] QCA 42 at [13]-[15].…
McCarthy v Campbell
[2014] QDC 108 Para 1

…ving re-read the decision that afternoon after the hearing, I invited the parties to make further submissions based on that decision and R v Norden [2009] QCA 42 which it was quoted with approval at [48] of Baker by Atkinson J.…
R v Reynolds
[2013] QCA 368

…s Penalties and Sentences Act 1992 (Qld), s 120, s 121, s 147 R v Norden [2009] 2 Qd R 455; [2009] QCA 42, cited COUNSEL: R A East for the applicant B G Campbell for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent…
R v Barry
[2011] QCA 119

…ed R v James [2000] QCA 477, cited R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381, considered R v Norden [2009] 2 Qd R 455; [2009] QCA 42, applied R v Tyson [2006] QCA 483, cited COUNSEL: C Morgan for the applicant/appellant M Connolly for the respondent SOLICITORS: Legal Aid Queensland for the applicant/app…
R v Baker
[2011] QCA 104 Para 1

…judge must have regard to the setting of a parole release date or parole eligibility date. Holmes JA explained the necessary procedure in R v Norden [2009] QCA 42 at [13]-[15] as follows:…
R v Coulton
[2010] QCA 331

…ray [2010] QCA 161 , applied R v Lui [2009] QCA 366, cited R v Newman [2008] QCA 147, applied R v Norden [2009] 2 Qd R 455; [2009] QCA 42, applied COUNSEL: The applicant appeared on his own behalf B G Campbell for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions…
R v Gray
[2010] QCA 161 Para 1

…e prospect of setting a parole release date prior to the expiration of that term of imprisonment. That is the process required in light of R v Norden [2009] QCA 42.…
R v Anderson
[2010] QCA 158 Para 1

…In R v Norden [2009] QCA 42, Holmes JA discussed the nature of the task which a sentencing Judge who is required to consider invoking a term of suspended imprisonment is faced with:…
R v Summerlin
[2009] QCA 297 Para 1

…ate and when within that activated term of imprisonment to set a parole release date is “a single exercise of discretionary judgment”: R v Norden [2009] QCA 42 per Holmes JA at [12] – [16]. Reference to the sentencing remarks on 13 March 2009 demonstrates that, with the exception of the matters I have identified…
R v Wildey
[2009] QCA 189 Para 1

…sentencing judge ameliorated the effect of the order activating the suspended imprisonment by fixing an immediate parole release date: see R v Norden [2009] QCA 42 at [14].…

View all 14 citing cases →

Cases cited in this decision · 6 of 6 shown

R v Marriner
[2006] QCA 32

…R v Holley, ex parte Attorney-General [1997] 2 Qd R 407; [1996] QCA 480, applied R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered R v Muller [2006] 2 Qd R 126; [2005] QCA 417, applied R v Stevens [2006] QCA 361, cited COUNSEL: J Sharp for the applicant/appellant G P Cash for the respondent SOLICITORS:…
R v Stevens
[2006] QCA 361 Para 1

…pendent exercise of discretion, arising once a decision is made that it is not unjust to require the offender to serve the suspended imprisonment? [9][2006] QCA 361.…
R v Muller
[2005] QCA 417

…; [1996] QCA 480, applied R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered R v Muller [2006] 2 Qd R 126; [2005] QCA 417, applied R v Stevens [2006] QCA 361, cited COUNSEL: J Sharp for the applicant/appellant G P Cash for the respondent SOLICITORS: Legal Aid Queensland for the applicant/appellant Director…
R v Holley, ex parte Attorney-General
[1996] QCA 480

…R v Holcroft [1997] 2 Qd R 392; [1996] QCA 478, applied R v Holley, ex parte Attorney-General [1997] 2 Qd R 407; [1996] QCA 480, applied R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered R v Muller [2006] 2 Qd R 126; [2005] QCA 417, applied R v Stevens [2006] QCA 361, cited COUNSEL: J Sharp for the appli…
R v Bowen
[1996] QCA 479

…), ss 160-160H Criminal Code 1899 (Qld), s 668D(1)(c) R v Blow [1963] QWN 1, applied R v Bowen [1997] 2 Qd R 379; [1996] QCA 479, applied R v Holcroft [1997] 2 Qd R 392; [1996] QCA 478, applied R v Holley, ex parte Attorney-General [1997] 2 Qd R 407; [1996] QCA 480, applied R v Marriner [2007] 1 Qd R 179; [2006]…
R v Holcroft
[1996] QCA 478

…v Blow [1963] QWN 1, applied R v Bowen [1997] 2 Qd R 379; [1996] QCA 479, applied R v Holcroft [1997] 2 Qd R 392; [1996] QCA 478, applied R v Holley, ex parte Attorney-General [1997] 2 Qd R 407; [1996] QCA 480, applied R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered R v Muller [2006] 2 Qd R 126; [2005]…

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
147(1)(b) 2 mentions (from Para 1)
Corrective Services Act 2006 (Qld)
1 mention (from Para 1)

CITATION:	R v Norden [2009] QCA 42
PARTIES:	R v NORDEN, Anthony James (applicant/appellant)
FILE NO/S:	CA No 260 of 2008 SC No 436 of 2008 SC No 363 of 2006 SC No 1081 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2009
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal allowed 2. Appeal against sentence on the possession and supply counts allowed 3. Sentences for the possession and supply counts varied by reducing the term of imprisonment in each case to four months and deleting the probation order 4. Activation of the whole of the suspended imprisonment on the receiving count is not disturbed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE: WHAT CONSTITUTES – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on pleas of guilty of one count of possessing methylamphetamine, one count of supplying methylamphetamine and one count of receiving stolen property – where, on the supply and possession counts, applicant sentenced to two years probation – where, on the receiving count, applicant sentenced to 12 months imprisonment, wholly suspended for an operational period of two years – where applicant twice convicted of further offences during operational period and while on probation – where, in sentencing for the breach of probation and breach of suspended sentence, learned sentencing judge revoked the probation order and re-sentenced applicant on the supply and possession counts to 12 months imprisonment, to be followed by two years probation; and, on the receiving count, activated the whole of the suspended imprisonment pursuant to s 147(1)(b) of the Penalties and Sentences Act 1992 (Qld), with a parole release date set at the end of the term of imprisonment – where applicant appealed on the ground that the combined effect of activating the suspended sentence and re-sentencing on the supply and possession counts was to impose a manifestly excessive sentence – whether this was a proper basis of appeal – whether the activation of the suspended sentence and the re-sentencing should be dealt with separately – whether activation of a suspended sentence is a “sentence” passed on conviction as defined in s 668(1) of the Criminal Code – whether decision to set parole release date is part of the decision under s 147(2) of Penalties and Sentences Act 1992 (Qld), or a separate exercise of discretion – whether learned sentencing judge erred in forming the view that it was not unjust to impose the whole of the suspended imprisonment – whether sentence imposed on supply and possession counts manifestly excessive Penalties and Sentences Act 1992 (Qld), s 147(1)(b), s 147(2), s 147(3), ss 160-160H Criminal Code 1899 (Qld), s 668D(1)(c) R v Blow [1963] QWN 1, applied R v Bowen [1997] 2…