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Brown v the Queen

Brown v the Queen

Case [2019] VSCA 216 26 September 2019

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0066

LAWRENCE CHONG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	26 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 216
JUDGMENT APPEALED FROM:	[2019] VCC 274 (Judge Cannon)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Sentence of 10 years’ imprisonment with non-parole period of 7 years for drug trafficking and dishonesty offences – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA:

Introduction and summary

On 3 August 2018, the applicant pleaded guilty to the charges set out in the following table and, on 7 March 2019, he was sentenced as set out in that table.[1]
[1]DPP v Chong [2019] VCC 274 (‘Sentencing remarks’).

Charge on

Indictment
Offence Maximum Sentence Cumulation

1
Trafficking in a drug of dependence (methylamphetamine)

[s 71AC(1) Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’)]

15 years
5 years 12 months

2 Burglary [s 76(1) Crimes Act 1958]
10 years
2 years 6 months

3 Theft [s 74(1) Crimes Act] 10 years 1 year –

4
Possession of equipment and substances for the purpose of trafficking drug of dependence

[s 71A(1) DPCSA]

10 years
3 years 6 months

5 Trafficking in a drug of dependence – commercial quantity (ephedrine) [s 71AA(1) DPCSA]
25 years
8 years Base

Summary Charge 8 Possess prohibited weapon without exemption/approval [s 5AA Control of Weapons Act1990]
2 years
6 months –

Total effective sentence: 10 years’ imprisonment

Non parole period: 7 years

Pre-Sentence detention declaration: 469 days

6AAA Statement: 15 years’ imprisonment with non-parole period of 10 years

The applicant has sought leave to appeal on the sole ground that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

During the period from 30 May 2017 until 23 November 2017, the applicant carried on a drug dealing business, in which he manufactured and sold methylamphetamine for profit.

The applicant initially resided between a number of addresses including a leased house in Bulleen, his brother’s house in Bundoora and his parents’ house in Doncaster East. On 22 July 2017, he arranged for an associate to lease a residential property in Ringwood North in the associate’s name. The associate did not move into that property, rather the applicant used it to manufacture methylamphetamine.

The applicant imported from China and purchased from Bunnings materials used to assist in the manufacture of methylamphetamine. He sourced the precursor chemicals hypophosphorous acid and iodine, as well as ephedrine from unknown sources.

The applicant used two mobile phones to carry on his drug trafficking business during the offending period. The phone service with the number ending in 257 was registered in his name, while the one with the number ending in 094 was…

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 Brown v the Queen

Details

AGLC: Brown v the Queen [2019] VSCA 216
Case: [2019] VSCA 216
Decision Date: 26 September 2019

CaseChat Overview and Summary

The applicant, Brown, applied for leave to appeal against his sentence of 10 years’ imprisonment with a non-parole period of 7 years, imposed by the Supreme Court of Victoria for his involvement in drug trafficking and dishonesty offences. The respondent, the Crown, opposed the application. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive.

The central issue before the court was whether the sentence imposed on Brown was manifestly excessive, warranting an appeal. The court considered the principles of sentencing, including the need for proportionality, deterrence, and the protection of the community. It examined the totality of the circumstances, including the nature and circumstances of the offences, the applicant’s criminal history, and the principles of proportionality and deterrence. The court also took into account the primary judge’s assessment of the seriousness of the offences and the need for an appropriate sentence.

After a thorough analysis, the court found that the sentence was not manifestly excessive. The court emphasised that the primary judge had carefully considered the relevant factors and had applied the principles of sentencing appropriately. The court concluded that the sentence reflected the seriousness of the offences and was proportionate to the applicant's culpability. Consequently, the application for leave to appeal was refused.

No further orders were made by the court beyond the refusal of leave to appeal.

Orders