Director Of Public Prosecutions v Dawid (Unreported, County Court of Victoria, 1 June 2012, Judge Patrick)
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CRIMINAL LAW – Sentencing – Appeal – Trafficking large commercial quantity of drug of dependence (methylamphetamine) – Guilty plea at earliest opportunity – No previous convictions – Whether judge erred in taking into account assessment of strength of Crown case – Whether sentence manifestly excessive – Whether lack of parity with co-offenders sentenced for trafficking commercial quantity of methylamphetamine – Phillips v The Queen [2012] VSCA 140 applied.
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Appearances:
Counsel
Solicitors
For the Applicant
Mr P F Tehan QC
Melasecca, Kelly & Zayler
For the Director
Mr T Gyorffy SC
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA:
For the reasons given by Kaye AJA I agree that the application for leave to appeal should be refused.
WHELAN JA:
I agree with Kaye AJA. I only wish to add this. The alternative submission on ground 1 reflected the matters set out by Nettle JA in Phillips v The Queen.[1] Nettle JA held, as did the other judges constituting the bench of five in that case, that the preponderance of authority precludes the adoption of that approach in this Court.
The applicant pleaded guilty, in the County Court, to one charge of trafficking in a drug of dependence, namely methylamphetamine (a large commercial quantity) contrary to s 71 of the Drugs Poisons and Controlled Substances Act 1981 (‘the Act’), and to one charge of trafficking in a drug of dependence, namely cocaine, contrary to s 71AC of the Act.
After hearing a plea made on behalf of the applicant, the judge, in a reserved decision, sentenced the applicant to a term of 8 years and 6 months’ imprisonment on the first charge, and to a term of 2 years’ imprisonment on the second charge. The judge directed that six months of the sentence, on the second charge, be served cumulatively with the sentence on the first charge, making a total effective sentence of 9 years’ imprisonment. Her Honour set a minimum non-parole period of 6 years and 2 months. The pre-sentence detention of the applicant was declared as 303 days. Pursuant to s 6AAA of the Sentencing Act 1991, her Honour indicated that, but for the applicant’s pleas of guilty, the sentence imposed would have been 13 years and 6 months’ imprisonment, with a minimum non-parole period of 9 years and 6
months. The applicant seeks leave to appeal against that sentence.
The two charges, to which the applicant pleaded guilty, allege that, in each case, the applicant committed the offence of trafficking…
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.
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AGLC
Dawid v DPP [2013] VSCA 64
Case
[2013] VSCA 64
Decision Date
CaseChat Overview and Summary
Dawid v DPP involved the appellant, Dawid, who was convicted of trafficking a large commercial quantity of methylamphetamine. Dawid entered a guilty plea at the earliest opportunity and had no prior convictions. The case was heard in the Court of Appeal. Dawid's appeal against sentence focused on three main legal issues: whether the trial judge erred in considering the strength of the Crown's case, whether the sentence was manifestly excessive, and whether there was a lack of parity with co-offenders who were also sentenced for trafficking commercial quantities of methylamphetamine. The appeal relied on the decision in Phillips v The Queen [2012] VSCA 140, which emphasised the importance of proportionality and parity in sentencing.
The court examined whether the trial judge's consideration of the Crown's case strength constituted an error. It was determined that the trial judge's approach was not inappropriate as it was a permissible factor to consider when determining the appropriate sentence. The court also assessed whether the sentence was manifestly excessive, taking into account the totality of the circumstances, including the appellant's early guilty plea and lack of prior convictions. The court concluded that the sentence was not manifestly excessive, as the trial judge had adequately considered these factors. Furthermore, the court considered whether there was a lack of parity with co-offenders who were sentenced for trafficking similar quantities of methylamphetamine. The court found that the sentences were not inconsistent, as each case had unique circumstances that warranted individual consideration.
In conclusion, the Court of Appeal dismissed the appellant's appeal against sentence. The court found that the trial judge did not err in considering the strength of the Crown's case, and the sentence was proportionate to the offence and the appellant's circumstances. The court also found that the sentences were consistent with those of co-offenders, taking into account the individual circumstances of each case. The appeal was therefore unsuccessful, and the original sentence imposed by the trial judge was upheld.