Beckerton v The Queen - [2011] VSCA 107

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0916

CHERYL BECKERTON	Applicant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 April 2011
DATE OF JUDGMENT	20 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 107
JUDGMENT APPEALED FROM	R v Scott & Ors (Unreported, County Court of Victoria, Judge Howard, 19 November 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – ‘Operation Jedi’ - Giretti trafficking and possession of cannabis and methylamphetamine – Total effective sentence three years and six months’ imprisonment with minimum term of two years and six months - History of extensive drug use – Lengthy criminal record including drug offences – Accorded leniency in the past – Offended during suspended sentence – Attempts at rehabilitation – Whether past leniency relevant – Open to judge to consider drug use of little weight as trafficking not to support or maintain addiction – Criticism of observation that because of drug use ‘so much the worse is your offending’ - Leave to appeal against sentence refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Theo Magazis & Associates
For the Respondent	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have had the advantage of reading the reasons of Weinberg JA in draft. I agree with his Honour that the application for leave to appeal should be refused.

Notwithstanding that conclusion, I consider that the judge’s sentencing remarks, fairly read, contained a number of errors.

First, for reasons discussed in other cases in which his Honour employed similar language, what he said about the significance of delay as a sentencing consideration was inconsistent with principle.[1]
[1]In each of Reilly v The Queen [2010] VSCA 278 [57]-[64], Briggs v The Queen [2010] VSCA 279, [7]-[13] and Bennett v The Queen [2010] VSCA 280 [18]–[21] the judge used the same formula. In each instance, the formula was criticised. It was held not to be productive of a successful appeal in Reilly and Bennett, the contrary in Briggs.

Second, in this case, for reasons described by Weinberg JA, it was not apt to say of the applicant that ‘to the extent that you better understood [the disabilities of consumers and addicts at street level] so much the worse is your offending.’

Third, the judge’s remarks at his [82], which Weinberg JA discusses at [46]–[50] in his reasons, in my opinion can only sensibly be read as meaning that the judge treated an accumulation of circumstances as bearing upon the applicant’s moral culpability, prospects of rehabilitation and dangerous propensity from which the community must be protected. But several of the identified circumstances could not have borne upon moral culpability.

The judge’s sentencing remarks were extensive. Most of what his Honour said was apt to explain why he imposed the sentences which he did. Nonetheless, one would infer, had he not erred in the manner which he did, that he would have imposed…

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 Beckerton v The Queen

Details

AGLC: Beckerton v The Queen [2011] VSCA 107
Case: [2011] VSCA 107
Decision Date: 20 April 2011

CaseChat Overview and Summary

The case of Beckerton v The Queen involved the appellant, Beckerton, appealing against his sentence following convictions related to drug trafficking and possession. The trial judge had sentenced Beckerton to a total effective term of three years and six months in prison, with a minimum term of two years and six months, following his involvement in the 'Operation Jedi' investigation. Beckerton's criminal history included extensive drug use and a series of drug-related offences. Despite having been granted leniency in the past, Beckerton offended while serving a suspended sentence. The appeal was predicated on the argument that the trial judge had not adequately considered the relevance of Beckerton's past leniency and drug use history in determining his sentence.

The central legal issues before the court were whether the trial judge erred in considering Beckerton's past leniency and drug use history insufficiently and whether the criticism of the judge's observation that Beckerton's drug use made his offending worse had merit. Specifically, the appeal contested whether the trial judge should have taken into account that Beckerton's drug trafficking was not primarily to support his personal addiction. The court was required to determine if the trial judge had erred in law in imposing the sentence.

In assessing the appeal, the court determined that the trial judge did not err in the manner in which he assessed Beckerton's criminal history and drug use. The court held that it was open to the trial judge to consider Beckerton's drug use of little weight in sentencing, as the trafficking was not primarily to support his addiction. Furthermore, the court found no merit in the criticism of the trial judge's observation that because of Beckerton's drug use, 'so much the worse is your offending'. The court held that the trial judge had appropriately considered the totality of the circumstances, including Beckerton's criminal history, attempts at rehabilitation, and the nature of the offences. Consequently, the appeal against sentence was dismissed, and leave to appeal was refused.

Orders