CRIMINAL LAW — Sentence — Indictable offences of trafficking and possession of drugs and summary offences of dealing with property suspected to be the proceeds of crime and possession of prohibited weapon — Appellant sentenced to 5 years’ and 3 months’ imprisonment with 3 years’ non-parole period — Judge pronounced an erroneous sentence on one charge with an order for cumulation — Error corrected and head sentence reduced but no adjustment was made to the non-parole period.
CRIMINAL LAW — Current sentencing practice — Summary offences of dealing with property suspected to be the proceeds of crime, Crimes Act 1958 s 195 — Summary offence of possessing prohibited weapon, Control of Weapons Act 1990 s 5AA — Individual sentences and orders for cumulation for summary offences significantly above dispositions in similar cases — Total effective sentence manifestly excessive — Appeal allowed — Appellant resentenced to 4 years’ and 9 months’ imprisonment with 2 years’ and 7 months’ non-parole period.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms M Fox
Garde Wilson Lawyers
For the Crown
Ms F L Dalziel
Ms V Anscombe, Acting Solicitor for Public Prosecutions
REDLICH JA
KYROU JA:
Introduction and summary
On 26 May 2014, the appellant (now aged 31) pleaded guilty to a number of drug and related offences in the County Court. The offences included a number of summary offences which had been transferred to the County Court pursuant to s 145 of the Criminal Procedure Act 2009. Following a plea, the appellant was sentenced on 30 May 2014 as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Trafficking in a drug of dependence [MDMA (‘ecstacy’)] — commercial quantity [Drugs Poisons and Controlled Substances Act1981 (‘DPCS Act’) s 71AA]
25 years
4 years
Base
2
Trafficking in a drug of dependence [methylamphetamine] [DPCS Act s 71AC]
15 years
18 months
-
3
Prohibited person in possession of a firearm [Firearms Act 1996 s 5(1)]
10 years
12 months
6 months
4
Possession of a drug of dependence (Cannabis L) [DPCS Act s 73(1)]
5 penalty units
Convicted and discharged
-
5
Possession of a drug of dependence (methorphan) [DPCS Act s 73(1)]
30 penalty units or 1 year imprisonment
Convicted and discharged
-
Summary charges
6
Dealing with property suspected to be the proceeds of crime [Crimes Act 1958 s 195]
Dealing with property suspected to be the proceeds of crime [Crimes Act 1958 s 195]
2 years
9 months
3 months
16
Without approval deal with unauthorised…
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.
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Details
AGLC
Barwick v The Queen [2015] VSCA 100
Case
[2015] VSCA 100
Decision Date
CaseChat Overview and Summary
Barwick, the appellant, was found guilty of various drug-related offences and sentenced to 5 years and 3 months’ imprisonment by the County Court of Victoria. The appellant appealed the sentence, arguing that it was manifestly excessive. The appeal was heard by the Court of Appeal, which had to determine whether the sentence was appropriate and whether the cumulative orders were justified.
The court examined the nature of the offences and the sentence imposed. It noted that the appellant was convicted of trafficking and possession of drugs, as well as summary offences related to dealing with property suspected to be the proceeds of crime and possessing a prohibited weapon. The court identified that the sentences for the summary offences were significantly higher than those typically seen in similar cases. Additionally, the total effective sentence was considered manifestly excessive. The court also found that the judge had made an error in pronouncing the sentence for one charge and ordering cumulation, which was subsequently corrected but without adjusting the non-parole period.
The Court of Appeal found that the original sentence was manifestly excessive and not in line with current sentencing practices. The court reduced the head sentence and adjusted the non-parole period to reflect the appropriate punishment for the offences committed. The appellant was resentenced to 4 years and 9 months’ imprisonment with a non-parole period of 2 years and 7 months.
The court's final orders involved reducing the appellant's sentence to 4 years and 9 months’ imprisonment, with a non-parole period of 2 years and 7 months. This decision was made to ensure that the sentence was proportionate to the crimes committed and aligned with current sentencing practices for similar offences.