CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to trafficking and possessing various drugs – Total effective sentence of 5 years’ imprisonment – Majority of charges arose from warrants executed on same day across two properties – Whether totality infringed – Whether manifestly excessive – Judge plainly aware of totality – Extensive criminal history – Sentence comfortably within range – No error identified – Leave to appeal refused.
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Counsel
Applicant:
Mr J O’Connor
Respondent:
Ms DI Piekusis QC
Solicitors
Applicant:
Balmer & Associates
Respondent:
Ms A Hogan, Solicitor for Public Prosecutions
WALKER JA:
On 15 October 2021 the applicant pleaded guilty to three charges of trafficking in a drug of dependence, four charges of possessing a drug of dependence, one charge of knowingly possessing counterfeit money, and related summary offences of dealing with property reasonably suspected of being the proceeds of crime, knowingly possessing identification information of another person, and unauthorised possession of a Schedule 4 poison. He was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Traffick in a drug of dependence[1] (Heroin)
15 years’ imprisonment and/or fine of 1800 penalty units
30 months’ imprisonment
6 months
2
Traffick in a drug of dependence (1,4-Butanediol)
15 years’ imprisonment and/or fine of 1800 penalty units
24 months’ imprisonment
6 months
3
Traffick in a drug of dependence (Methylamphetamine)
15 years’ imprisonment and/or fine of 1800 penalty units
39 months’ imprisonment
Base
4
Possess a drug of dependence[2] (Cocaine)
5 years’ imprisonment and/or fine of 600 penalty units
6 months’ imprisonment
3 months
5
Possess a drug of dependence (MDMA)
5 years’ imprisonment and/or fine of 600 penalty units
6 months’ imprisonment
3 months
6
Possess a drug of dependence (Cannabis)
5 years’ imprisonment and/or fine of 600 penalty units
1 month imprisonment
Nil
7
Possess a drug of dependence[3]
5 years’ imprisonment and/or fine of 600 penalty units
3 months’ imprisonment
1 month
8
Knowingly possess counterfeit money[4]
10 years’ imprisonment and/or fine of 600 penalty units
Fine in the sum of $500.00
Nil
Related Summary Offences
19
Deal with property suspected of being proceeds of crime[5]
2 years’ imprisonment and/or fine of 250 penalty units
3 months’ imprisonment
1 month
34
Knowingly possess identification information (that is not identification information that relates to the person)[6]
3 years’ imprisonment and/or fine of 360 penalty units
1 month imprisonment
1 month
36
Unauthorised possession of a Schedule 4 poison[7]
Fine of 10 penalty units
Fine in the sum of $500.00
Nil
Total Effective Sentence:
5 years’ imprisonment
Non-Parole Period:
3 years 6 months’ imprisonment
Section 6AAA Statement:
7 years’ imprisonment with a non-parole period of 5 years’ imprisonment
Other relevant orders:
Forfeiture and disposal orders…
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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Details
AGLC
Donnes v The Queen [2022] VSCA 132
Case
[2022] VSCA 132
Decision Date
CaseChat Overview and Summary
The appellant, Donnes, appealed against the sentence imposed following his guilty plea to drug trafficking and possession charges. The case was heard in the High Court of Australia. Donnes was found in possession of a substantial quantity of drugs, leading to the execution of warrants at two properties on the same day. The appellant argued that the totality principle was infringed and that the sentence was manifestly excessive.
The court was required to determine whether the sentence imposed by the trial judge was within the range of reasonable discretion and whether it adhered to the principles of totality and proportionality. The court examined the individual sentences, orders for cumulation, and the total effective sentence of 5 years’ imprisonment. It also considered the appellant’s extensive criminal history.
The High Court held that the sentence was comfortably within the range open to the trial judge and that the non-parole period of 3 years and 6 months was not manifestly excessive, being 70 per cent of the total effective sentence. The court found that the judge was plainly aware of the totality principle and that there was no error in the sentencing process. Consequently, the court refused leave to appeal.
No further orders were made by the court.
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
For completeness, I record that I do not regard the non-parole period of 3 years and 6 months as manifestly excessive. It is 70 per cent of the total effective sentence, which is comfortably within the range open to the sentencing judge.Conclusion on ground 2 In my opinion the individual sentences, orders for cumulation and total effective sentence were open to the trial judge in the reasonable exercise of his discretion and were not manifestly excessive. Ground 2 thus has no prospects of success. For the above reasons, I would refuse leave to appeal.---