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Bala v The Queen

Bala v The Queen

Case [2010] VSCA 78 16 April 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0975

MILI BALA	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, ASHLEY JA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2009
DATE OF ORDER:	21 October 2009
DATE OF JUDGMENT:	16 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 78
JUDGMENT APPEALED FROM:	R v Bala (Reasons for sentence) (Unreported, County Court of Victoria, Judge Duckett, 19 September 2008)

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CRIMINAL LAW – Appeal – Sentence – Trafficking – Cannabis – Non-commercial quantity – Plea of not guilty – Prior trafficking convictions – Strong evidence of rehabilitation – Sentenced to seven years’ imprisonment with a non-parole period of five years – Manifestly excessive – Unjustifiable disparity between sentence imposed and sentences in comparable cases – Crown submission on range – Need for explanatory material to assist judge – Sentencing discretion re-opened – Re-sentenced to three and a half years’ imprisonment with non-parole period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Lewenberg & Lewenberg
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

The appellant (‘Bala’) stood trial in the County Court on one count of trafficking in heroin and one count of trafficking in cannabis, both being drugs of dependence. He was acquitted of the first count but convicted on the second. On that count, he was sentenced to seven years’ imprisonment with a non-parole period of five years.

Bala was sentenced on the basis that he had sold and subsequently delivered 1.27 kilograms of cannabis, for which he received about $7,800. He appealed by leave against sentence. His primary complaint was that the sentence was manifestly excessive.

At the conclusion of the hearing, the Court announced that the appeal would be allowed and the sentence below set aside. We re-sentenced the appellant to three and a half years’ imprisonment with a non-parole period of two years. It was declared that 338 days had already been served under the sentence.

We said that the reasons for allowing the appeal and re-sentencing the appellant would be published in due course. These are my reasons for joining in the orders made.

The applicable sentencing range and the relevance of current practice

At the conclusion of argument on the plea, the sentencing judge asked the prosecutor to indicate what the applicable sentencing range was. The matter was stood down to enable the prosecutor to seek instructions. Counsel subsequently submitted on behalf of the Crown that the head sentence should be in the range six to eight years, and the non-parole period in the range four to six years. Nothing was said, however, to explain the basis of that submission.

In R v MacNeil-Brown,[1] this Court emphasised that the function of Crown submissions on range is to promote consistency of sentencing and to reduce the risk of appealable error. A submission which baldly states figures is unlikely, however, to be of much assistance…

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 Bala v The Queen

Details

AGLC: Bala v The Queen [2010] VSCA 78
Case: [2010] VSCA 78
Decision Date: 16 April 2010

CaseChat Overview and Summary

Bala has appealed against his sentence for trafficking in a non-commercial quantity of cannabis. The case was heard in the High Court of Australia. The central issue in the appeal was whether the original sentence was manifestly excessive and whether there was an unjustifiable disparity between the sentence imposed and those in comparable cases. Another issue was the need for explanatory material to assist the sentencing judge.

The court considered the factors relevant to sentencing, including the nature and circumstances of the offence, the offender’s prior criminal history, and the need for general deterrence. The court noted that Bala had a history of drug-related offences but also had evidence of rehabilitation. The Crown submitted on the range of sentencing, acknowledging that the sentence might be higher than usual but arguing it was justified by the offender’s history and the need for deterrence. The court found that the original sentence was manifestly excessive and there was an unjustifiable disparity with sentences in similar cases. It also highlighted the need for better explanatory material to assist the sentencing judge in understanding the impact of the sentence.

The court reopened the sentencing discretion and re-sentenced Bala to three and a half years’ imprisonment with a non-parole period of two years. The court emphasised the importance of proportionality in sentencing and the need for comprehensive consideration of all relevant factors, including rehabilitation and deterrence. The decision underscores the importance of providing clear and detailed submissions to assist the sentencing judge in making an informed decision.

Orders