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Cuthbertson v The Queen

Cuthbertson v The Queen

Case [2019] VSCA 104 15 May 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0147

JIA CUTHBERTSON	Applicant
V
THE QUEEN	Respondent

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JUDGES:	PRIEST and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2019
DATE OF JUDGMENT:	15 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 104
JUDGMENT APPEALED FROM:	DPP v Cuthbertson (Unreported, County Court of Victoria, Judge Lyon, 1 June 2018)

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CRIMINAL LAW — Appeal — Sentence — Importation of marketable quantity of border controlled drug (cocaine) — Criminal Code Act 1995 (Cth) sch 1 s 307.2(1) — Guilty plea — Sentenced to eight years and three months imprisonment — Whether sentencing judge failed to make an allowance for the plea — Whether allowance for plea can be inferred —R v Gillick (2001) 125 A Crim R 395 — Whether term of imprisonment manifestly excessive — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney	Doogue + George Defence Lawyers
For the Respondent	Ms K Breckweg	Commonwealth Director of Public Prosecutions

PRIEST JA:

I agree with Emerton JA, whose reasons for judgment I have had the advantage of reading in draft.

EMERTON JA:

On 28 May 2018, the appellant pleaded guilty before a judge in the County Court of Victoria to the Commonwealth offence of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code (Cth) (charge 1), and two State offences: being a prohibited person possessing an imitation firearm contrary to s 5AB(2) of the Control of Weapons Act 1990 (charge 2), and possessing an unregistered general category hand gun contrary to s 7B(1) of the Firearms Act 1966 (charge 3).

On 1 June 2018, the judge sentenced the appellant to a total effective sentence of 8 years and 3 months’ imprisonment, with a non-parole period of 5 years and 9 months as follows:

Commonwealth

Charge Offence Sentence Starting Date

1 Import a marketable quantity of a border controlled drug 8 years and 3 months 1 June 2018

Victorian

Charge Offence Sentence Cumulation

2 Prohibited person possess an imitation firearm 12 months —

3 Possess an unregistered hand gun 9 months –

Total Effective Sentence: 8 years and 3 months’ imprisonment

Non-Parole Period: 5 years and 9 months’ imprisonment

Pre-Sentence Detention 140 days

On 11 October 2018 the appellant was granted leave to appeal the sentence on the following two grounds:

(1)The sentencing judge erred in failing to give any, or proper weight to the appellant’s plea of guilty.

(2) The sentence on charge 1 is manifestly excessive.

The offending

On 15 October 2017, Australian Border Force members intercepted a consignment at Melbourne Airport consisting of a cardboard box containing four shock absorbers. The consignment had been sent from Thailand. Concealed within two of the shock absorbers was a white powdery substance that was subsequently analysed and found to be cocaine. The consignee was ‘Larry Longworth’ and the consignee address was a parcel locker at a 7-Eleven store at 22 Scoresby Road, Bayswater in Victoria. The alternative…

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 Cuthbertson v The Queen

Details

AGLC: Cuthbertson v The Queen [2019] VSCA 104
Case: [2019] VSCA 104
Decision Date: 15 May 2019

CaseChat Overview and Summary

The case of Cuthbertson v The Queen involved the appellant who was found guilty of importing a marketable quantity of a border controlled drug, specifically cocaine, under the Criminal Code Act 1995 (Cth). The appellant entered a guilty plea and was sentenced to eight years and three months imprisonment. The appellant appealed the sentence on the basis that the sentencing judge failed to make an appropriate allowance for the guilty plea. Additionally, the appellant argued that the sentence was manifestly excessive.

The legal issues before the court were whether the sentencing judge had failed to make an allowance for the appellant's guilty plea and whether such an allowance could be inferred from the sentencing remarks. The appellant also contended that the term of imprisonment imposed was manifestly excessive. The court examined the sentencing remarks to determine if the judge had considered the plea discount and whether the sentence imposed was manifestly excessive.

The court found that the sentencing judge had indeed made an allowance for the guilty plea, which was evident from the sentencing remarks. The court considered the remarks to be an adequate reflection of the discount that would have been applied had the case proceeded to trial. The court also determined that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offence committed. The appeal was dismissed.

The court's final order was to dismiss the appellant's appeal against sentence. The court held that the sentencing judge had appropriately considered the guilty plea and that the sentence imposed was not manifestly excessive. The court's decision emphasised the importance of ensuring that sentencing judges properly account for a guilty plea and that sentences imposed are proportionate to the offence.

Orders