JUDGES:	MAXWELL P and KENNEDY JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2022
DATE OF JUDGMENT:	26 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 100
JUDGMENT APPEALED FROM:	[2020] VCC 1321 (Judge Stuart)

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CRIMINAL LAW – Appeal – Sentence – Trafficking 4.8 times large commercial quantity of methylamphetamine – Trafficking cannabis – Possession of firearms – Contravention of Firearm Prohibition Order (‘FPO’) – Possession of traffickable quantity of firearms – Discharge firearm at premises – Arson – Total effective sentence 21 years and 6 months – Non-parole period 15 years – Whether manifestly excessive – Powerful firearms – Flagrant disobedience of FPO – Further acquisition of firearms after police seizure – Very serious offending – Moral culpability at highest level – Specific deterrence – Community protection – Orders for cumulation reflected significant and separate criminality – Sentences within range – Open to judge to differentiate between co-offenders – Leave refused – DPP v Kumas [2021] VSCA 215, Atkinson v The Queen [2021] VSCA 127 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr CK Wareham	Theo Magazis & Associates
For the Respondent	Mr JCJ McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
KENNEDY JA:

Summary

Over a two month period in early 2019, the applicant (‘MB’) committed a series of very serious offences. Throughout the period he was trafficking in methylamphetamine (‘ice’) in such large quantities that his most serious offence was trafficking in a large commercial quantity of the drug (‘LCQ trafficking’). For that offence, he was sentenced to 12 years’ imprisonment.

He also pleaded guilty to a charge of possessing firearms in contravention of a firearm prohibition order (‘FPO’), for which he was sentenced to 6 years’ imprisonment, and to the offence of ‘discharge firearm at premises’, relating to a drive-by shooting which he instigated. On that charge he received a sentence of 8 years and 6 months’ imprisonment. There were separate charges of arson (3 years) and possession of a traffickable quantity of unregistered firearms (3 years).

Altogether, MB pleaded guilty to nine indictable offences. The total effective sentence was 21 years and 6 months’ imprisonment. A non-parole period of 15 years was fixed. MB now seeks leave to appeal against sentence on the following grounds, namely, that the individual sentences on the FPO charge and the ‘discharge firearm’ charge are manifestly excessive; that excessive cumulation has led to a total effective sentence which is manifestly excessive; and that it was not reasonably open to the judge to differentiate as he did between MB and one of the co-offenders in the sentences imposed for the drive-by shooting.

This was very serious offending indeed. Unlike the more familiar ‘spree’ of offending, which typically involves a string of similar offences committed over a short period in order to satisfy a drug addiction, these were all quite separate offences, involving different activities and different criminal…

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 Bruce v The Queen

Details

AGLC: Bruce v The Queen [2022] VSCA 100
Case: [2022] VSCA 100
Decision Date: 26 May 2022

CaseChat Overview and Summary

In the case of Bruce v The Queen, the appellant, Bruce, sought leave to appeal against his conviction and sentence for multiple serious criminal offences. The offences included trafficking a large quantity of methylamphetamine, trafficking cannabis, possession of firearms, contravening a Firearm Prohibition Order, possession of a traffickable quantity of firearms, discharging a firearm at premises, and arson. The sentence imposed was a total effective term of 21 years and 6 months, with a non-parole period of 15 years. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive.

The primary legal issue before the Court of Appeal was whether the sentence imposed was manifestly excessive. The appellant argued that the sentence was too severe given the circumstances, while the respondent maintained that the sentence was appropriate given the nature and seriousness of the offences committed. The court had to consider the principles of sentencing in relation to the gravity of the offending, the appellant's moral culpability, the need for specific deterrence and community protection, and whether the orders for cumulation adequately reflected the significant and separate criminality involved.

The Court of Appeal found that the sentence was not manifestly excessive. The court held that the appellant had engaged in very serious offending, with a high level of moral culpability, involving powerful firearms and flagrant disobedience of a Firearm Prohibition Order. The court also noted that the appellant had further acquired firearms after a previous police seizure, which demonstrated a disregard for the law and the consequences of his actions. The court further held that the orders for cumulation reflected the significant and separate criminality involved and that the sentences imposed were within the appropriate range. The court also recognised that it was open to the judge to differentiate between co-offenders, and in this case, the sentence imposed was appropriate given the appellant's role in the offending. The Court of Appeal ultimately refused the appellant's application for leave to appeal, citing relevant authorities such as DPP v Kumas [2021] VSCA 215 and Atkinson v The Queen [2021] VSCA 127.

The Court of Appeal did not make any further orders in relation to the appeal. The appellant's conviction and sentence remained unchanged.

Orders