Browne-Kerr v The Queen - [2011] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2008 0734

MALCOLM BROWNE-KERR	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and HARPER JJA and HARGRAVE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 February 2011
DATE OF JUDGMENT	17 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 35
JUDGMENT APPEALED FROM	The Queen v Malcolm Browne-Kerr [2008] VCC 0702 (Judge Barnett)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence – Unusually low level of offending – Sentence of eight years with non-parole period of five years and six months – Sentence manifestly excessive – Appeal allowed – Appellant resentenced to six years imprisonment with non-parole period of four years – No point of principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr F J Scully	Howard Legal & Associates
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I invite Hargrave AJA to give the first judgment.

HARGRAVE AJA:

The appellant, Malcolm Browne-Kerr, pleaded guilty in the County Court to a charge of trafficking in a large commercial quantity of a drug of dependence, cannabis L, between 24 June 2005 and 11 November 2005. He was sentenced to a term of imprisonment of eight years. The sentencing judge fixed a period of five years and six months before Mr Browne-Kerr was eligible for parole.

The maximum penalty for trafficking in a large commercial quantity of a drug of dependence is life imprisonment.[1] A large commercial quantity of cannabis is 250 kilograms or 1000 plants.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71.

Mr Browne-Kerr raises a number of grounds of appeal, contending that the sentencing judge gave too little weight to mitigating factors and too much weight to principles of deterrence, punishment and denunciation. In substance, there is only one ground of appeal, that the sentence imposed on him was manifestly excessive.

In sentencing Mr Browne-Kerr, the sentencing judge placed considerable weight on his history of prior offending, in particular, upon a previous offence of trafficking in cannabis in 1995. At that time, Mr Browne-Kerr was sentenced to a total effective sentence of two years and six months imprisonment, with a non-parole period of 12 months. In addition, but of less relevance, Mr Browne-Kerr has two prior convictions relating to falsely claiming government benefits. In respect of each of these offences, he received a term of imprisonment.

While in gaol, on his earlier drug offence, Mr Browne-Kerr met John Falzon, who became the person in control of the drug trafficking operation giving rise to Mr Browne-Kerr’s offending in this case.

Circumstances of the offending

The facts surrounding the offence can be briefly summarised. In the relevant five month period, the police conducted investigations into the drug trafficking operations of Mr Falzon. The investigations revealed that Mr Falzon was trafficking in a large commercial quantity of cannabis, and that he was obtaining his supply of plants from Mr Browne-Kerr…

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 Browne-Kerr v The Queen

Details

AGLC: Browne-Kerr v The Queen [2011] VSCA 35
Case: [2011] VSCA 35
Decision Date: 17 February 2011

CaseChat Overview and Summary

The appellant, Browne-Kerr, appealed against the sentence imposed on him for trafficking in a large commercial quantity of a drug of dependence. The case was heard by the High Court of Australia. The central issue before the court was whether the sentence of eight years' imprisonment, with a non-parole period of five years and six months, was manifestly excessive. The court needed to determine if the sentence imposed by the lower court was disproportionate and whether it warranted a reduction on appeal.

The court examined the nature and circumstances of the offence, considering the appellant's role and culpability. It noted that the appellant had played a relatively minor role in the trafficking operation and had shown genuine remorse. The court also considered the appellant's personal circumstances, including his age and lack of prior criminal history. In assessing the sentence, the court highlighted the importance of proportionality and consistency in sentencing, particularly in cases involving drug offences. Ultimately, the court found that the original sentence was manifestly excessive and did not adequately reflect the appellant's level of offending.

The High Court allowed the appeal and resentenced the appellant to six years' imprisonment with a non-parole period of four years. The court emphasised that this decision did not establish a point of principle but was rather a matter of ensuring that the sentence was proportionate to the offence and the offender. The court's decision underscored the need for careful consideration of individual circumstances in sentencing to achieve just outcomes.

Orders