SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0808
| MARK SHANE BAENSCH | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P, WEINBERG JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 June 2010 | |
DATE OF JUDGMENT: | 24 June 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 191 | |
JUDGMENT APPEALED FROM: | R v Baensch (Unreported, County Court of Victoria, Judge Morrow, 2 September 2008) | |
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CRIMINAL LAW – Appeal – Sentence – Two counts of trafficking in a non-commercial quantity of heroin – Summary offence of using heroin – Sentenced to four years’ imprisonment with a non-parole period of three years – Correctness of characterisation of offending as serious example of offence – Manifest excess – Relevance of quantity in exercise of sentencing discretion – Recidivist offender – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr C B Boyce | Brugman Mellas |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA:
This is an appeal by Mark Shane Baensch against a sentence imposed in the Geelong County Court on 2 September 2008. The appellant pleaded guilty to two counts of trafficking heroin and to the summary offence of using heroin. He was sentenced as follows:
| COUNT | OFFENCE | MAXIMUM | SENTENCE |
| 3 | Trafficking drug of dependence (heroin) | 15y | 6m |
| 4 | Trafficking drug of dependence (heroin) | 15y | 4y |
| 7 | Use of drug of dependence (heroin) | 1y | 1m |
| Total effective sentence: 4y Non-parole period: 3y | |||
In our judgment, the appeal should be dismissed. Our reasons are as follows.
Factual circumstances
In November 2007, Geelong police received information that heroin was being trafficked from a Geelong address at which the appellant was living. An investigation was conducted and on 18 February 2008 an undercover police officer arranged to meet with the appellant in order to purchase drugs. At the meeting, the appellant agreed to supply the undercover officer with 0.5 grams of heroin at a price of $200. This transaction subsequently took place. Analysis of the drug sold to the police officer by the appellant showed that it was 20 per cent pure heroin weighing 0.4 grams (Count 3).
Between 3 March and 8 March 2008 police monitored over 1,950 telephone conversations on the appellant’s mobile phone, pursuant to a warrant to intercept. The calls, nearly all of which related to drugs, showed that the appellant travelled each day from the Geelong area to Richmond and Braybrook to purchase heroin while his co-offender, Daniel Patterson, remained at the Geelong unit in order to sell the drugs to customers. The appellant collected money from potential customers prior to going to Melbourne, where the heroin was obtained. The heroin was sold for $50 for 0.1 of a gram and in batches of up to 0.5 of a gram, worth $200 (Count 4).
The heroin was purchased with money collected from customers, amounting to at least $9,450. When 3.5 grams of heroin purchased by the appellant in Melbourne on 8 March 2008 was stolen from him, he and his co-accused…
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- AGLC
- Baensch v The Queen [2010] VSCA 191
- Case
- [2010] VSCA 191
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the trial judge erred in characterising the offending as a serious example of the offence, leading to an excessively harsh sentence. The appellant argued that the quantity of drugs was not relevant in determining the seriousness of the offence, and the sentence imposed was manifestly excessive. The prosecution contended that the trial judge had correctly exercised their discretion in sentencing.
The High Court held that the trial judge had not erred in characterising the offending as a serious example of the offence. The Court emphasised that the quantity of drugs was one of many factors to consider in sentencing, and the trial judge had appropriately taken into account the appellant’s criminal history as a recidivist offender. The Court found that the sentence imposed was not manifestly excessive and dismissed the appeal. The appellant's conviction and sentence were upheld.
The High Court dismissed the appeal and affirmed the conviction and sentence of the appellant, Baensch.
Orders
Orders of the court
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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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