R v Ponsonby - [2024] QCA 229

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ponsonby [2024] QCA 229

PARTIES:

R
v
PONSONBY, Sam Zane
(applicant)

FILE NO/S:

CA No 114 of 2023
SC No 731 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of Sentence: 21 June 2023 (Henry J)

DELIVERED ON:

19 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2024

JUDGES:

Mullins P and Bond JA and Callaghan J

ORDERS:

1.   Application for leave to appeal granted.

2.   Appeal allowed.

3.   The sentences imposed on 21 June 2023 are varied only to the following extent:

a.   For count 1 on the indictment, “eight and one-half” is substituted for “seven”; and

b.   The date on which the applicant is eligible for parole is fixed at 20 April 2026.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was convicted on his own plea of guilty of three charges, of which the most serious was possession of more than 200g of methylamphetamine – where the applicant was also convicted of summary offences – where the applicant was sentenced to seven years imprisonment for aggravated possession, and lesser terms of imprisonment on the other offences – where the learned sentencing judge reduced the head sentence on count 1 to give the applicant the benefit of his guilty plea, in circumstances where it was agreed the applicant had poor prospects of parole – where it was allowed at the hearing of this application that this was an orthodox approach – where the High Court, after the hearing of the application but prior to publication of reasons, delivered judgment in R v Hatahet [2024] HCA 23 – where the High Court held that the general principle is that the prospect of securing release on parole is not relevant to the judicial task of sentencing – where the High Court held that this principle applies in Queensland – where the applicant was allowed to recast their argument in light of this development – where the applicant therefore succeeds in application for leave to appeal against sentence – whether the existing sentence should be varied

Corrective Services Act 2006 (Qld), s 184
Crimes Act 1914 (Cth)
Penalties and Sentences Act 1992 (Qld)

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited
R v BH; Ex parte Attorney-General (Qld) (2000) 110 A Crim R 499; [2000] QCA 110, cited
R v Hatahet (2024) 98 ALJR 863; [2024] HCA 23, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited

COUNSEL:

A J Edwards KC for the applicant
J T Aylward for the respondent

SOLICITORS:

Owens and Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with the orders proposed by Callaghan J and the reasons of his Honour.
The error made by the Court of Criminal Appeal that was identified in

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 Ponsonby

Details

AGLC: R v Ponsonby [2024] QCA 229
Case: [2024] QCA 229
Decision Date: 19 November 2024

CaseChat Overview and Summary

The applicant, who had pleaded guilty to charges including aggravated possession of more than 200g of methylamphetamine, sought to appeal against his sentence in the Queensland Court of Appeal. The primary issue before the court was whether the applicant's sentence, which included a seven-year term for the most serious charge, was appropriate in light of recent High Court jurisprudence that considered the relevance of parole prospects in sentencing. The court also had to determine if the applicant's prospects for parole should have influenced the original sentencing judge's decision.

The High Court's decision in R v Hatahet established that parole prospects should not be a factor in sentencing. This development allowed the applicant to argue that his sentence was improperly influenced by considerations that should not have been relevant. The Court of Appeal acknowledged the significance of the High Court's ruling and found that the applicant's sentence did not adequately reflect the principle that parole prospects are not a valid consideration in sentencing. Consequently, the court allowed the applicant's appeal against sentence, varying the original sentence to ensure it aligned with the High Court's directive.

The Court of Appeal granted the application for leave to appeal and allowed the appeal against the sentence. The original sentence of seven years for the most serious charge was varied to eight and a half years, reflecting the need for a sentence that does not consider parole prospects. Additionally, the date for eligibility for parole was fixed at 20 April 2026, ensuring that the sentence now adheres to the legal principles set out by the High Court. This decision ensures that the applicant's sentence is consistent with contemporary legal standards regarding parole considerations in sentencing.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal allowed.

3. The sentences imposed on 21 June 2023 are varied only to the following extent:

a. For count 1 on the indictment, “eight and one-half” is substituted for “seven”; and

b. The date on which the applicant is eligible for parole is fixed at 20 April 2026.

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 Ponsonby [2024] QCA 229
PARTIES:	R v PONSONBY, Sam Zane (applicant)
FILE NO/S:	CA No 114 of 2023 SC No 731 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of Sentence: 21 June 2023 (Henry J)
DELIVERED ON:	19 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	8 May 2024
JUDGES:	Mullins P and Bond JA and Callaghan J
ORDERS:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. The sentences imposed on 21 June 2023 are varied only to the following extent: a. For count 1 on the indictment, “eight and one-half” is substituted for “seven”; and b. The date on which the applicant is eligible for parole is fixed at 20 April 2026.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was convicted on his own plea of guilty of three charges, of which the most serious was possession of more than 200g of methylamphetamine – where the applicant was also convicted of summary offences – where the applicant was sentenced to seven years imprisonment for aggravated possession, and lesser terms of imprisonment on the other offences – where the learned sentencing judge reduced the head sentence on count 1 to give the applicant the benefit of his guilty plea, in circumstances where it was agreed the applicant had poor prospects of parole – where it was allowed at the hearing of this application that this was an orthodox approach – where the High Court, after the hearing of the application but prior to publication of reasons, delivered judgment in R v Hatahet [2024] HCA 23 – where the High Court held that the general principle is that the prospect of securing release on parole is not relevant to the judicial task of sentencing – where the High Court held that this principle applies in Queensland – where the applicant was allowed to recast their argument in light of this development – where the applicant therefore succeeds in application for leave to appeal against sentence – whether the existing sentence should be varied Corrective Services Act 2006 (Qld), s 184 Crimes Act 1914 (Cth) Penalties and Sentences Act 1992 (Qld) Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55, cited R v BH; Ex parte Attorney-General (Qld) (2000) 110 A Crim R 499; [2000] QCA 110, cited R v Hatahet (2024) 98 ALJR 863; [2024] HCA 23, considered R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
COUNSEL:	A J Edwards KC for the applicant J T Aylward for the respondent
SOLICITORS:	Owens and Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent