R v Thornbury - [2017] QCA 284

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thornbury [2017] QCA 284

PARTIES:

R
v
THORNBURY, Joshua Paul
(applicant)

FILE NO/S:

CA No 364 of 2016
SC No 1256 of 2016
SC No 1451 of 2016
SC No 1453 of 2016
SC No 1454 of 2016
SC No 1465 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 28 November 2016 (Atkinson J)

DELIVERED ON:

17 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2017

JUDGES:

Sofronoff P and Morrison JA and Boddice J

ORDER:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of two grams, one count of knowingly possessing a sum of money obtained from trafficking in a dangerous drug, multiple property related offences, fraud, official corruption and attempted official corruption offences – where there were over 150 counts – where the applicant was sentenced to concurrent sentences of ten and six years’ imprisonment on the trafficking counts – where the sentence of ten years attracted an automatic serious violent offence declaration – where the applicant was sentenced to two and a half years’ imprisonment on the remaining counts to be served cumulatively with the sentences imposed on the trafficking counts – where the applicant contends that those sentences of imprisonment were manifestly excessive – whether the head sentence imposed on the trafficking count breached the parity principle – whether the sentences imposed created an overall crushing sentence – whether leave to appeal should be granted

R v Barker[2015] QCA 215, considered
R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, considered
R v Gordon[2016] QCA 10, considered
R v Heilbronn[2017] QCA 21, considered
R v Jacobs[2016] QCA 28, considered
R v Kerma[2006] QCA 127, considered
R v Salter[2010] QCA 284, considered
R v Thornbury [2017] QCA 283, considered
R v Tout[2012] QCA 296, applied

COUNSEL:

A J Kimmins for the applicant
J A Wooldridge for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Boddice J and with the order his Honour proposes.
MORRISON JA: I have read the reasons of Boddice J and agree with those reasons and the order his Honour proposes.
BODDICE J: On 28 November 2016, the applicant pleaded guilty to two counts of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of two grams, and one count of knowingly possessing a sum of money obtained from trafficking in a dangerous drug, together with multiple property related offences, fraud official corruption and attempted official corruption offences. There were…

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 Thornbury

Details

AGLC: R v Thornbury [2017] QCA 284
Case: [2017] QCA 284
Decision Date: 17 November 2017

CaseChat Overview and Summary

The applicant appealed against the sentences imposed following a guilty plea to numerous drug trafficking, property, fraud, official corruption and attempted official corruption offences. The applicant argued the sentences imposed by the sentencing judge were manifestly excessive, particularly the sentence imposed on the trafficking count, which breached the parity principle, and the cumulative sentences imposed created an overall crushing sentence. The court was required to determine whether the applicant's contentions were valid and whether the sentences imposed warranted appeal.

The court held that the applicant's significant cooperation with the administration of justice was a mitigating factor in the sentencing process. The court found that the imposition of a total additional sentence of two and a half years imprisonment, to be served cumulatively, for the separate offending conduct properly reflected the seriousness of the conduct while recognising the impact of an order that it be served cumulatively. The overall head sentence of 12 and a half years properly reflected the applicant's sustained criminality over an extended period of time. The court concluded that the sentences imposed on the applicant were not manifestly excessive.

The court held that the applicant's contentions did not warrant appeal. The court found that the sentences imposed by the sentencing judge were appropriate, taking into account the seriousness of the offending and the mitigating factors present in this case. The court was satisfied that the sentencing judge had properly exercised their discretion in imposing the sentences.

The court refused the application for leave to appeal and ordered that the application be dismissed.

Orders

Orders of the court

The application for leave to appeal be refused.

Background

Background to the litigation

The applicant seeks leave to appeal those sentences of imprisonment, on the ground they were manifestly excessive. In support of that ground, the applicant submits the sentence of imprisonment imposed on the trafficking count breached the parity principles and the imposition of cumulative sentences of imprisonment created an overall crushing sentence.Background The applicant was born on 17 February 1984. He was aged 28 to 30 years during the offending period and 32 years at sentence. The applicant had a limited prior criminal history. He had no prior drug offences. He had not previously been sentenced to imprisonment.Offences The applicant was charged separately with having trafficked in cannabis and methylamphetamine. The cannabis trafficking count related to a significant wholesale trafficking business conducted over a period of 15 months with his brother, Terrence Thornbury. The business utilised the services of five couriers to transport cannabis from interstate, predominantly by commercial airline, although there were unspecified occasions when cannabis was brought from interstate via road. There were 108 identified transportations by air, involving 2,835 kilograms of cannabis. The cannabis was on-sold to at least five other suppliers in Queensland. It was estimated the cannabis was worth $4,900 per pound and was purchased for $2,500 per pound. In all, approximately $15.6 million was paid for the cannabis transported by air. No estimate was given in relation to the cannabis transport by road. The applicant was sentenced on the basis he was the second in command to his brother who had overall management and control of the business. It was his brother who communicated with suppliers and customers. The applicant’s responsibility covered organising money, drugs and couriers. The methylamphetamine trafficking count concerned a separate trafficking operation conducted by the applicant alone over a period of about nine months. The applicant sourced varying amounts of methylamphetamine, which he on-sold to five customers. He engaged two associates as “buffers” to meet with other relevant parties. It was alleged the applicant in the course of this operation threatened violence in order to enforce drug debts. He also accepted stolen property in exchange for drugs. He had an enforcer who collected money on his behalf. At the time of the applicant’s interception on 15 April 2014, he was found in possession of 18.358 grams of pure methylamphetamine. Police located a further 7.111 grams of pure methylamphetamine which the applicant denied was his drug. The property offences related to various items found in the applicant’s possession on his arrest on 15 April 2014. It was alleged the applicant had either obtained or stolen that property. The applicant was involved in a series of heists with two co-defendants during which they unlawfully entered various premises and businesses and stole property. The official corruption counts related to a scheme undertaken by the applicant and his girlfriend whereby the applicant arranged to illegitimately register stolen property with the Department of Main Roads and Transport. This scheme involved the assistance of an employee of that Department. An aspect of the scheme involved obtaining false Queensland driver licences for people not entitled to obtain licenses.Sentence hearing

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The imposition of a total additional sentence of two and a-half years imprisonment, to be served cumulatively, for such separate offending conduct properly reflected the seriousness of that offending whilst recognising the impact of an order that it be served cumulatively by the applicant.Conclusion The overall head sentence of 12 and a-half years properly reflected the applicant’s sustained criminality over an extended period of time, even allowing for his significant cooperation with the administration of justice. The sentence of imprisonment imposed on the applicant were not manifestly excessive.Order I would order that the application for leave to appeal be refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Thornbury [2017] QCA 284
PARTIES:	R v THORNBURY, Joshua Paul (applicant)
FILE NO/S:	CA No 364 of 2016 SC No 1256 of 2016 SC No 1451 of 2016 SC No 1453 of 2016 SC No 1454 of 2016 SC No 1465 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 28 November 2016 (Atkinson J)
DELIVERED ON:	17 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2017
JUDGES:	Sofronoff P and Morrison JA and Boddice J
ORDER:	The application for leave to appeal be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of two grams, one count of knowingly possessing a sum of money obtained from trafficking in a dangerous drug, multiple property related offences, fraud, official corruption and attempted official corruption offences – where there were over 150 counts – where the applicant was sentenced to concurrent sentences of ten and six years’ imprisonment on the trafficking counts – where the sentence of ten years attracted an automatic serious violent offence declaration – where the applicant was sentenced to two and a half years’ imprisonment on the remaining counts to be served cumulatively with the sentences imposed on the trafficking counts – where the applicant contends that those sentences of imprisonment were manifestly excessive – whether the head sentence imposed on the trafficking count breached the parity principle – whether the sentences imposed created an overall crushing sentence – whether leave to appeal should be granted R v Barker[2015] QCA 215, considered R v Galeano [2013] 2 Qd R 464; [2013] QCA 51, considered R v Gordon[2016] QCA 10, considered R v Heilbronn[2017] QCA 21, considered R v Jacobs[2016] QCA 28, considered R v Kerma[2006] QCA 127, considered R v Salter[2010] QCA 284, considered R v Thornbury [2017] QCA 283, considered R v Tout[2012] QCA 296, applied
COUNSEL:	A J Kimmins for the applicant J A Wooldridge for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent