R v Thornbury - [2017] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thornbury [2017] QCA 283

PARTIES:

R
v
THORNBURY, Terrence John
(applicant)

FILE NO/S:

CA No 344 of 2016
SC No 1256 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 18 November 2016 (Byrne SJA)

DELIVERED ON:

17 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2017

JUDGES:

Sofronoff P and Morrison JA and Boddice J

ORDER:

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 one count of trafficking in a dangerous drug – where the applicant was sentenced to 10 years’ imprisonment – where the conviction was declared a serious violent offence – where the sole ground of appeal contended is that the sentence imposed was manifestly excessive in all the circumstances – whether leave to appeal should be granted

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered
R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248, considered
R v Gordon[2016] QCA 10, considered
R v Heckendorf[2017] QCA 59, applied
R v Heilbronn[2017] QCA 21, considered
R v Kalaja [2012] QCA 329, considered
R v Kerma [2006] QCA 127, considered
R v Salter[2010] QCA 284, considered
R v Tout [2012] QCA 296, applied

COUNSEL:

M J Copley QC 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 18 October 2016, the applicant pleaded guilty to one count of trafficking in a dangerous drug, namely, cannabis. The trafficking period was between 1 January 2013 and 16 April 2014.
On 18 November 2016, the applicant was sentenced to 10 years imprisonment with 38 days pre-sentence custody declared as time served in respect of that sentence. As a consequence of that sentence, the conviction was declared to be a conviction of a serious violent offence pursuant to s 161B of the Penalties and Sentences Act 1992.
The applicant seeks leave to appeal that sentence of imprisonment. The sole ground for the appeal, should leave be granted, is that the sentence imposed was manifestly excessive in all the circumstances.
Background
The applicant was born on 9 November 1977. He was 39 years of age at the time of sentence and 35 to 36 years of age at the time of the trafficking offence.
The applicant had a limited prior criminal history. Relevantly, it included previous drug and firearm offences for which fines had been imposed in 2014 and 2016. The applicant had not…

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 283
Case: [2017] QCA 283
Decision Date: 17 November 2017

CaseChat Overview and Summary

In the case of R v Thornbury, the applicant sought leave to appeal the sentence of imprisonment imposed on him. The applicant had pleaded guilty to trafficking in a dangerous drug, specifically large quantities of cannabis, and was sentenced to 10 years’ imprisonment. The applicant's sole ground for appeal, should leave be granted, was that the sentence was manifestly excessive in all the circumstances. The court was tasked with determining whether the sentence imposed was so excessive that it warranted interference and whether leave to appeal should be granted.

The court examined the circumstances of the offence, which involved the trafficking of significant quantities of cannabis over a period of approximately 15 months. The applicant played a key role in the operation, managing the communications with suppliers and purchasers. The court also considered the applicant's prior criminal history, which included drug and firearm offences, and noted that he had not previously been sentenced to periods of imprisonment. The court assessed the sentence in light of relevant authorities and the principles governing the sentencing of serious violent offences.

The court concluded that the sentence imposed on the applicant did not markedly differ from relevant authorities, nor was it unreasonable or plainly unjust. The comparison with other cases, such as those of Kerma and Gordon, demonstrated that the sentence was appropriate given the scale and nature of the applicant's involvement in the drug trafficking operation. Consequently, the court found that the sentence was not manifestly excessive.

ORDERS:
Leave to appeal be refused.

Orders

Orders of the court

Leave to appeal be refused.

Background

Background to the litigation

The applicant seeks leave to appeal that sentence of imprisonment. The sole ground for the appeal, should leave be granted, is that the sentence imposed was manifestly excessive in all the circumstances.Background The applicant was born on 9 November 1977. He was 39 years of age at the time of sentence and 35 to 36 years of age at the time of the trafficking offence. The applicant had a limited prior criminal history. Relevantly, it included previous drug and firearm offences for which fines had been imposed in 2014 and 2016. The applicant had not previously been sentenced to periods of imprisonment.The offence The applicant and his brother Joshua, trafficked in large quantities of cannabis over a period of approximately 15 months. The business employed five persons to courier cannabis from Melbourne to Queensland. On most occasions the drug was transported on commercial airline flights. The couriers would carry the purchase money in cash Melbourne to the supplier and return with cannabis prepared in multiple vacuum packed bags and wrapped in scented cloth. The quantities of cannabis on each occasion ranged between 50 to 100 lbs. In total, 108 journeys were made at about 2,834.87 kgs of cannabis were couriered up. There were other occasions when cannabis was couriered by road. The number of those occasions and the quantity of drugs on each such occasion were unknown. The applicant and his brother provided approximately $15.6 million to purchase the cannabis, paying about $2,500 per pound. At sentence it was alleged that a pound of cannabis was able to be sold for about $4,900. Couriers were paid $100 for every pound couriered by them. The cannabis was sold to five customers. During the trafficking period some of the couriers were intercepted by police. Those interceptions occurred on 18 and 23 December 2013, on 9 January 2014, and 26 March 2014. On those occasions cannabis weighing 21.7 kgs, 10 lbs, 22.7 kgs and 21.6 kgs were seized by police. Notwithstanding these interventions, the trafficking operation continued until the applicant, his brother and most of the couriers and purchasers were arrested by police on 15 April 2014. At the time of his arrest, the applicant was found in possession of $4,250 in cash. A search of a residence connected to his brother revealed a further $111,370 in cash. At sentence it was alleged that the applicant was the overall controller of the trafficking business. His role was to communicate with the supplier and with the purchasers. The applicant’s brother’s role was to manage the funds provided to couriers and received from purchasers. It was alleged that on one occasion the applicant threatened one of the couriers after the intercept and seizure of his cannabis.Sentencing remarks The sentencing Judge observed that the applicant was a mature man with a limited criminal history who had “overall control” of a significant drug trafficking business in which large quantities of cannabis were transported from interstate on multiple occasions. The sentencing Judge observed that the applicant’s role was as “the head of a sophisticated, large cannabis trafficking operation … the business involved the transportation of very large quantities of cannabis and distribution of it in South East Queensland”. The applicant was “motivated solely by a concern to make money.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whilst Kerma received a similar sentence of imprisonment for a lengthier trafficking period and after a trial, the volume of drugs the subject of that trafficking was significantly less than in the present case. Similarly, the trafficking undertaken by Gordon was of a lesser magnitude, albeit over a substantially longer period. More significantly, Gordon was a youthful offender.Conclusion The sentence imposed on the applicant is not one that so markedly differs from relevant authorities as to evidence any misapplication of principle. Further, the sentence is not unreasonable or plainly unjust. The sentence imposed on the applicant was not manifestly excessive.Orders I would order that leave to appeal be refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Thornbury [2017] QCA 283
PARTIES:	R v THORNBURY, Terrence John (applicant)
FILE NO/S:	CA No 344 of 2016 SC No 1256 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 18 November 2016 (Byrne SJA)
DELIVERED ON:	17 November 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2017
JUDGES:	Sofronoff P and Morrison JA and Boddice J
ORDER:	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 one count of trafficking in a dangerous drug – where the applicant was sentenced to 10 years’ imprisonment – where the conviction was declared a serious violent offence – where the sole ground of appeal contended is that the sentence imposed was manifestly excessive in all the circumstances – whether leave to appeal should be granted AB v The Queen (1999) 198 CLR 111; [1999] HCA 46, considered R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248, considered R v Gordon[2016] QCA 10, considered R v Heckendorf[2017] QCA 59, applied R v Heilbronn[2017] QCA 21, considered R v Kalaja [2012] QCA 329, considered R v Kerma [2006] QCA 127, considered R v Salter[2010] QCA 284, considered R v Tout [2012] QCA 296, applied
COUNSEL:	M J Copley QC for the applicant J A Wooldridge for the respondent
SOLICITORS:	Guest Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent