Blaire Ashweirth v The Queen - [2015] VSCA 224

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0148

BLAIRE ASHWEIRTH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF JUDGMENT:	26 August 2015
DATE OF HEARING:	26 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 224
JUDGMENT APPEALED FROM:	DPP v Ashweirth (Unreported, County Court of Victoria, Judge Ryan, 10 July 2015)

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CRIMINAL LAW – Sentence – Appeal – Sentence of six months’ imprisonment with CCO of three years for trafficking a drug of dependence (methylamphetamine) and other offences – Principle of parity infringed – Appeal allowed – Appellant sentenced to a CCO of three years’ duration with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Holding	Balot Reilly
For the Crown	Mr B Sonnett	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

On 25 June 2015, the applicant pleaded guilty in the County Court to one charge of aiding and abetting trafficking in a drug of dependence (charge 1); one charge of attempting to traffick a drug of dependence (charge 2); two charges of knowingly dealing with proceeds of crimes (charges 3 and 6); one charge of possessing a drug of dependence (charge 4); and one charge of possessing an unregistered firearm (charge 5).

Following a plea, on 10 July 2015 the judge sentenced the applicant on charges 1, 2, 3, 4 and 6 to be imprisoned for six months, together with a community correction order (‘CCO’) for three years, such order to commence upon completion of the term of imprisonment.[1] Conditions of the CCO included that the applicant undergo mental health assessment and treatment that may include psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as may be directed by the Regional Manager.
[1]On charge 5 the applicant was fined $250. It is not sought to appeal that penalty.

The applicant sought leave to appeal against the sentence on the following grounds:

1. That the total effective sentence of 6 months imprisonment and a 3 year Community Corrections (sic.) Order[2] is, in all the circumstances of the case, manifestly excessive.
2. That the Learned Sentencing Judge erred in not finding that the Applicant had good prospects of rehabilitation or erred in failing to accord that factor sufficient weight in the sentencing process.
3. That the Learned Sentencing Judge erred in finding that the more punitive conditions under a community corrections (sic.) order regime had no application to the Applicant save for unpaid community work.
4. That the Sentence imposed would engender in the Applicant a justifiable sense of grievance when compared to the sentence imposed upon Cody Wilson and infringed the principle of parity.
5. That the Sentence imposed would engender in the Applicant a justifiable sense of grievance when compared to the sentence imposed upon Bradley Stephen and infringed the principle of parity.

[2]It is a common error to describe such an order as a ‘community corrections order’. The Sentencing Act 1991, however, prescribes a ‘community…

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 Blaire Ashweirth v The Queen

Details

AGLC: Blaire Ashweirth v The Queen [2015] VSCA 224
Case: [2015] VSCA 224
Decision Date: 26 August 2015

CaseChat Overview and Summary

The appellant, Blaire Ashweirth, appealed against the sentence imposed on them by the County Court for trafficking a drug of dependence (methylamphetamine) and other related offences. The case was heard in the Court of Appeal. The primary dispute centred on the fairness and proportionality of the sentence, with a particular focus on whether it complied with the principle of parity.

The central legal issue before the court was whether the sentence breached the principle of parity, which mandates that sentences for similar offences should be comparable, ensuring consistency in sentencing. The court had to consider if the combination of a six-month imprisonment term and a three-year community corrections order (CCO) for the appellant was proportionate and aligned with the principle of parity. The appellant argued that the sentence was excessive and did not reflect the sentencing principles applied in similar cases.

The court found that the sentence indeed infringed the principle of parity, as it was disproportionate in comparison to sentences handed down in similar cases. The court recognised that while the appellant's conduct was serious, the sentence imposed was not consistent with the principle of parity, leading to an appeal being allowed. As a result, the appellant was re-sentenced to a CCO of three years’ duration with conditions, aligning with the principle of parity. This decision underscores the importance of maintaining consistency and fairness in sentencing practices.

Orders