Baensch v The Queen - [2010] VSCA 191

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…

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 Baensch v The Queen

Details

AGLC: Baensch v The Queen [2010] VSCA 191
Case: [2010] VSCA 191
Decision Date: 24 June 2010

CaseChat Overview and Summary

The appellant, Baensch, was convicted on two counts of trafficking in a non-commercial quantity of heroin and one count of using heroin. He was sentenced to a total of four years’ imprisonment, with a non-parole period of three years. Baensch appealed the severity of his sentence, arguing it was manifestly excessive and that the quantity of drugs was not relevant in the exercise of sentencing discretion. The appeal was heard by the High Court of Australia.

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