R v Orley - [2013] QCA 119

SUPREME COURT OF QUEENSLAND

CITATION:

R v Orley [2013] QCA 119

PARTIES:

R
v
ORLEY, Christopher James
(applicant)

FILE NO/S:

CA No 131 of 2012
SC No 580 of 2012

DIVISION:

Court of Appeal

PROCEEDINGS:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2013

JUDGES:

White and Gotterson JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by jury at the conclusion of a five day trial of one count of carrying on the business of unlawfully trafficking in the dangerous drug cannabis between January and April 2010 – where he was sentenced to six years imprisonment with no recommendation as to parole – where in sentencing the applicant the sentencing judge remarked that the applicant was deeply involved in a sophisticated operation involving the distribution and movement of large quantities of cannabis – where the applicant displayed complete lack of remorse and cooperation – where the sentence range was one of six to seven years – where the applicant was sentenced at the lower end of the range due to mitigating circumstances – where the applicant was 55 years of age at the time of offending and had a criminal history that included conviction of an offence of possession of a dangerous drug – whether the sentence imposed was manifestly excessive

Drugs Misuse Act 1986 (Qld), s 5
Penalties and Sentences Act 1992 (Qld), s 9(1)(c)

R v Brienza [2010] QCA 15, followed
R v Broad & Prior [2010] QCA 53, considered
R v Collins [2009] QCA 387, distinguished
R v Parsons & Sanders [1999] QCA 402, considered

COUNSEL:

S A Lynch for the applicant
B J Merrin for the respondent

SOLICITORS:

AW Bale & Son for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WHITE JA: I have read the reasons for judgment of Gotterson JA and I agree for those reasons that the application for leave to appeal against sentence should be refused.

GOTTERSON JA: At the conclusion of a trial over some five days, the applicant, Christopher James Orley, was convicted by jury on 25 May 2012 of an offence against s 5 of the Drugs Misuse Act 1986. The conviction was on a single count of carrying on the business of unlawfully trafficking in the dangerous drug cannabis between 11 January and 15 April 2010. The applicant was sentenced that day to imprisonment for six years. No recommendation as to parole was made.

Leave to appeal against the sentence is sought by the applicant. The ground of appeal upon which he would rely is that the sentence is manifestly excessive in all the circumstances. A variation of the sentence to five…

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 Orley

Details

AGLC: R v Orley [2013] QCA 119
Case: [2013] QCA 119
Decision Date: 21 May 2013

CaseChat Overview and Summary

In the case of R v Orley, the applicant was convicted by a jury of one count of carrying on the business of unlawfully trafficking in dangerous drugs, specifically cannabis, between January and April 2010. The conviction followed a five-day trial, and the applicant was sentenced to six years imprisonment without a recommendation for parole. The sentencing judge emphasised the applicant's deep involvement in a sophisticated operation involving the distribution and movement of large quantities of cannabis, and noted a complete lack of remorse and cooperation displayed by the applicant. The applicable sentence range was six to seven years, and the applicant was sentenced at the lower end due to mitigating circumstances, including his age of 55 at the time of the offence and a prior conviction for possession of a dangerous drug.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant argued that the sentence was excessively harsh, particularly given the lower end of the range was chosen due to mitigating factors. The court had to consider the principles of sentencing and whether the sentence was appropriate in the circumstances, including the applicant's lack of remorse and the seriousness of the offence.

The court considered the sentencing remarks and determined that the sentence was not manifestly excessive. The judge had appropriately considered the range of sentencing options and the mitigating factors. The court found that the sentence imposed was proportionate to the seriousness of the offence and the applicant's conduct. The application for leave to appeal against the sentence was therefore refused.

The final order of the court was to deny the application for leave to appeal against the sentence, affirming that the sentence was not manifestly excessive or inadequate in the circumstances of the case.

Orders

Orders of the court

Application for leave to appeal against sentence refused.

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 Orley [2013] QCA 119
PARTIES:	R v ORLEY, Christopher James (applicant)
FILE NO/S:	CA No 131 of 2012 SC No 580 of 2012
DIVISION:	Court of Appeal
PROCEEDINGS:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2013
JUDGES:	White and Gotterson JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted by jury at the conclusion of a five day trial of one count of carrying on the business of unlawfully trafficking in the dangerous drug cannabis between January and April 2010 – where he was sentenced to six years imprisonment with no recommendation as to parole – where in sentencing the applicant the sentencing judge remarked that the applicant was deeply involved in a sophisticated operation involving the distribution and movement of large quantities of cannabis – where the applicant displayed complete lack of remorse and cooperation – where the sentence range was one of six to seven years – where the applicant was sentenced at the lower end of the range due to mitigating circumstances – where the applicant was 55 years of age at the time of offending and had a criminal history that included conviction of an offence of possession of a dangerous drug – whether the sentence imposed was manifestly excessive Drugs Misuse Act 1986 (Qld), s 5 Penalties and Sentences Act 1992 (Qld), s 9(1)(c) R v Brienza [2010] QCA 15, followed R v Broad & Prior [2010] QCA 53, considered R v Collins [2009] QCA 387, distinguished R v Parsons & Sanders [1999] QCA 402, considered
COUNSEL:	S A Lynch for the applicant B J Merrin for the respondent
SOLICITORS:	AW Bale & Son for the applicant Director of Public Prosecutions (Queensland) for the respondent