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…
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- AGLC
- Cuthbertson v The Queen [2019] VSCA 104
- Case
- [2019] VSCA 104
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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