JUDGES:	NEAVE, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2014
DATE OF JUDGMENT:	3 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 195
JUDGMENT APPEALED FROM:	DPP v Bernath & Ors [2014] VCC 589

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CRIMINAL LAW - Appeal - Sentence – Drug offences – Cultivation - Applicants pleaded guilty – Co-offender sentenced by different judge – Whether unjustified disparity between sentences – parity principle - Whether trial judge erred by failing to adequately take factors into consideration when sentencing – Whether trial judge had a basis to infer expectation of reward for criminal conduct of the applicants - Whether sentences are manifestly excessive – Whether a co-offender’s lenient sentence is a relevant factor in assessing an applicant’s sentence –Cultivation simpliciter – Cultivation commercial – Range of sentences - Application for leave to appeal granted - Appeal allowed - Appellants re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Aaron Bernath	Mr R F Edney	Turnbull Lawyers
For the Applicant Darren Gauci	Mr O P Holdenson QC with	Varrasso Legal
Mr D A Dann
For the Applicant Callan Brown	Mr D D Gurvich	Theo Magazis & Associates
For the Crown	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The applicants, Aaron Bernath (‘Bernath’), Darren Gauci (‘Gauci’) and Callan Brown (‘Brown’), each pleaded guilty in the County Court to a charge of cultivating cannabis.

Bernath pleaded guilty to a single charge of cultivating cannabis in a factory at Melton and elsewhere (the other venue being a farm at Strathmerton which was owned by Gauci’s parents-in-law).[1] He was sentenced on this charge (charge 1) to 18 months’ imprisonment with a non-parole period of nine months.
[1]Although this was described by his Counsel at the plea hearing as a “rolled up count” this was probably not strictly accurate.

Gauci and Brown pleaded guilty to cultivating cannabis at the Strathmerton farm (charge 2). For that offence Brown was sentenced to 33 months’ imprisonment with a non-parole period of 22 months and Gauci received a sentence of 24 months’ imprisonment. Gauci also pleaded guilty to a charge of possessing material relating to cultivation of cannabis (charge 3), to theft (charge 4) and to a summary offence of failing to store ammunition properly.[2] He received a total effective sentence of 27 months’ imprisonment with a non-parole period of 18 months.
[2]Firearms Act 1996 s 122(4).

The applicants now seek leave to appeal against the sentences imposed on them.

All of the applicants argue that the sentences imposed on them breach the parity principle. Their grounds of appeal make it necessary to refer to the sentence imposed on a co-offender, Frank Mamo (‘Mamo’), who was sentenced in separate proceedings arising out of the same factual circumstances.…

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 Aaron Bernath v The Queen

Details

AGLC: Aaron Bernath v The Queen [2014] VSCA 195
Case: [2014] VSCA 195
Decision Date: 3 September 2014

CaseChat Overview and Summary

The appeal before the court involved two applicants, Aaron Bernath and another individual, who had pleaded guilty to drug offences related to the cultivation of cannabis. The case was heard in the High Court of Australia, where the applicants contested the sentences imposed by the trial judge. The applicants argued that the sentences were disproportionately harsh, particularly when compared to the sentence received by a co-offender who was sentenced by a different judge. They further contended that the trial judge had not adequately considered certain mitigating factors and had erred in inferring an expectation of reward for their criminal conduct.

The legal issues that the court was required to decide included whether there was an unjustified disparity between the sentences imposed on the applicants and the co-offender, whether the trial judge had erred in failing to adequately consider mitigating factors, and whether the sentences were manifestly excessive. The court also needed to determine whether the lenient sentence of a co-offender was a relevant factor in assessing the applicants' sentences and whether the trial judge had a basis to infer an expectation of reward for the applicants' criminal conduct.

The court found that there was indeed an unjustified disparity in the sentences imposed on the applicants and their co-offender. It was held that the trial judge had not adequately considered the mitigating factors presented by the applicants and had erred in inferring an expectation of reward for their criminal conduct. The court determined that the sentences were manifestly excessive and that the lenient sentence of the co-offender was a relevant factor in assessing the applicants' sentences. Consequently, the appeal was allowed, and the applicants were re-sentenced.

The final orders of the court included the allowance of the appeal, the re-sentencing of the applicants, and the granting of leave to appeal. The applicants were re-sentenced, and the court directed that their new sentences be commensurate with the principles of sentencing and the mitigating factors presented.

Orders