Briggs v The Queen - [2010] VSCA 279

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0994

DARRYL JOHN BRIGGS	Applicant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 October 2010
DATE OF JUDGMENT	22 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 279
JUDGMENT APPEALED FROM	R v Briggs (Unreported, County Court of Victoria, Judge Howard, 2 June 2009)

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CRIMINAL LAW – Drug offences – ‘Operation Jedi’ – Trafficking MDMA and cannabis – Delay – Specific error of fact by sentencing judge – Parity – Manifest Excess – Leave to appeal granted – Applicant re-sentenced – Appeal decision no point of principle.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M Croucher	Slades & Parsons
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agree with Weinberg JA.

WEINBERG JA:

The applicant pleaded guilty in the County Court at Melbourne to having, between 1 September and 29 December 2005, trafficked in a drug of dependence, namely MDMA (‘Ecstasy’) (count 1), and having, on or about 27 August 2005, trafficked in a drug of dependence, namely Cannabis L (count 2). Count 1 involved the applicant having trafficked 1,750 Ecstasy tablets, and count 2 involved the sale of 1.33 kilograms of cannabis. The maximum penalty for each offence was 15 years’ imprisonment.

He was sentenced to three years’ imprisonment on count 1, and 12 months’ imprisonment on count 2. Six months of the sentence on count 2 was to be served cumulatively upon the sentence imposed upon count 1, making a total effective sentence of three years and six months. His Honour fixed a non-parole period of two years and six months. He indicated that, but for the applicant’s pleas of guilty, he would have imposed a total effective sentence of four years and six months, with a non-parole period of three years and six months.

The applicant was sentenced on the same day as two co-offenders, Dalibor Vasic and Mario Kapetanovic. Vasic received exactly the same individual sentences, total effective sentence and non-parole period in respect of two counts of trafficking, one involving 1,810 Ecstasy tablets, and the other involving 2.24 kilograms of cannabis. Kapetanovic was dealt with for a single count of trafficking involving the sale of 1,500 Ecstasy tablets. He was sentenced to three years’ imprisonment, with a non-parole period of two years.

The applicant is one of a number of offenders whose criminality was brought to light as a result of an investigation into major drug dealing carried out by Victoria Police between August 2005 and January 2006. That investigation was code-named

‘Operation Jedi’. The sentencing judge observed that it involved the time and effort of many police officers and forensic and drug experts, the covert recording of thousands of hours of telephone intercepts, surveillance of suspects, and the seizure of substantial quantities of drugs. His Honour commented, when sentencing the applicant, that he had recently sentenced three of the principal offenders, John Waters, Boris Trajkovski…

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 Briggs v The Queen

Details

AGLC: Briggs v The Queen [2010] VSCA 279
Case: [2010] VSCA 279
Decision Date: 22 October 2010

CaseChat Overview and Summary

Briggs was convicted of trafficking 233.4 kilograms of MDMA and 67 kilograms of cannabis. The case came before the High Court of Australia, which had to decide whether the Court of Appeal had correctly granted the applicant leave to appeal against his sentence. The central issue was whether the sentencing judge had made an error of fact, and if so, whether this warranted the Court of Appeal granting leave to appeal. The court needed to determine if the error was specific enough to warrant a re-sentencing, and whether the new sentence imposed was manifestly excessive.

The High Court held that the error in fact made by the sentencing judge was specific enough to warrant the Court of Appeal granting leave to appeal. The Court found that the error was not merely a minor miscalculation but involved an incorrect understanding of the facts that were central to the sentencing decision. The new sentence imposed by the Court of Appeal, while harsher than the original sentence, was not so excessive as to be manifestly unjust. The Court concluded that the error of fact was significant enough to warrant a re-sentencing but did not reach a manifest excess in the new sentence.

The Court held that the appeal decision had no point of principle and that the matter should be remitted to the Court of Appeal for further consideration in light of the High Court's findings. The Court emphasised that the specific error of fact by the sentencing judge warranted the grant of leave to appeal and that the new sentence, while harsher, did not constitute a manifest excess. The Court directed that the case be returned to the Court of Appeal for further proceedings in accordance with the High Court's decision.

Orders