R v Sullivan

Case [2009] QCA 344

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sullivan [2009] QCA 344

PARTIES:

R
v
SULLIVAN, John Edward
(applicant)

FILE NO/S:

CA No 187 of 2009
SC No 80 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

6 November 2009

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2009

JUDGES:

Chief Justice, Muir JA and A Lyons J
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 allowed;

3.   The sentence imposed on 5 August 2009 be set aside;

4.   The applicant be sentenced to a term of imprisonment of six and a half years and be eligible for parole after having served two and a half years of such term of imprisonment;

5.   The sentence be served concurrently with the term of imprisonment imposed by the District Court of New South Wales on 24 January 2006

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where applicant pleaded guilty to carrying on the business of unlawfully trafficking in 3,4 methylenedioxymethamphetamine ("MDMA") – where primary judge considered applicant’s preparatory conduct including the acquisition of equipment and chemicals and the production of 1400ml of isosafrole when sentencing the applicant – whether acts preparatory to the manufacturing of dangerous drugs constitutes trafficking in such drugs – whether primary judge erred in sentencing the applicant on facts attributable to production – whether sentencing discretion miscarried in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was sentenced to nine and a half years imprisonment with parole eligibility after three and a half years to be served concurrently with a term of imprisonment of six years, with a non-parole period of four years, imposed by the District Court of New South Wales for the offence of manufacturing a commercial quantity of MDMA – where primary judge purportedly reduced a notional head sentence of 12 to 13 years imprisonment by four and a half years to reflect the applicants pre-sentence custody – whether primary judge insufficiently credited time served by the applicant in respect of the New South Wales sentence – whether sentence manifestly excessive

Drugs Misuse Act 1986 (Qld), s 4

Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, cited
R v Bradforth [2003] QCA 183, considered
R v Cannon [2007] QCA 205, cited
R v Elhusseini [1988] 2 Qd R 442, considered
R v Elizalde [2006] QCA 330, distinguished
R v Jenkins, Rollason & Brophy [2008] QCA 369, distinguished
R v Nabhan; R v Kostopoulos [2007] QCA 266, considered
R v Patena [1996] QCA 152, considered
R v Raciti [2004] QCA 359, distinguished

COUNSEL:

J Cremin (Pro Bono) for the applicant
P F Rutledge for the…

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Details
AGLC
R v Sullivan [2009] QCA 344
Case
[2009] QCA 344
Decision Date

CaseChat Overview and Summary

In the case of R v Sullivan, the applicant, who had pleaded guilty to trafficking in 3,4 methylenedioxymethamphetamine (MDMA), appealed against the sentence imposed by the Supreme Court of New South Wales. The applicant had previously been convicted and sentenced by the District Court of New South Wales for manufacturing a commercial quantity of MDMA. The primary judge in the Supreme Court considered the applicant's preparatory conduct, including the acquisition of equipment and chemicals and the production of 1400ml of isosafrole, when imposing the sentence. The central issue in this appeal was whether the primary judge erred in sentencing the applicant based on facts attributable to the production of the drug and whether the sentencing discretion miscarried.

The Court of Appeal considered whether the acts preparatory to the manufacturing of dangerous drugs constituted trafficking in such drugs and whether the primary judge sufficiently credited the applicant's pre-sentence custody. The Court found that the primary judge had misapprehended the law in considering the preparatory conduct as part of the trafficking offence. Additionally, the Court determined that the primary judge did not sufficiently credit the applicant's pre-sentence custody, resulting in a manifestly excessive sentence. Consequently, the Court allowed the appeal, set aside the original sentence, and imposed a new sentence of six and a half years imprisonment, with parole eligibility after two and a half years.

In summary, the Court of Appeal allowed the applicant's appeal against the sentence, set aside the original sentence, and imposed a new sentence to be served concurrently with the sentence imposed by the District Court of New South Wales. The new sentence comprised six and a half years imprisonment, with the applicant being eligible for parole after serving two and a half years.

Orders

Orders of the court

1. Application for leave to appeal allowed;

2. Appeal allowed;

3. The sentence imposed on 5 August 2009 be set aside;

4. The applicant be sentenced to a term of imprisonment of six and a half years and be eligible for parole after having served two and a half years of such term of imprisonment;

5. The sentence be served concurrently with the term of imprisonment imposed by the District Court of New South Wales on 24 January 2006

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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