DPP (Cth) v Afford (Unreported, County Court of Victoria, Judge Gucciardo, 2 September 2015)
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Importation of commercial quantity of heroin – Importation 1.61 times commercial quantity – Sentence of imprisonment of three years and two months, with non-parole period of two years – Whether manifestly inadequate – Intentional importation – Plea of not guilty – Respondent reckless as to whether substance was border controlled drug – Good prospects for rehabilitation – Sentence manifestly inadequate – Whether residual discretion should be exercised – Appeal allowed – Resentenced to imprisonment for 10 years, with non-parole period of seven years – Criminal Code 1995 (Cth) s 307.1.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms K Breckweg
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Respondent
Mr T Kassimatis QC with Ms A Burchill
James Dowsley & Associates
MAXWELL ACJ BEACH JA:
On 2 July 2015, following a nine-day trial in the County Court, a jury found the respondent (‘SA’) guilty of one charge of importing a commercial quantity of a border controlled drug (heroin), contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) (‘Code’). The maximum term of imprisonment for importing a commercial quantity of a border controlled drug is life imprisonment.
On 2 September 2015, following a plea hearing conducted on 18 August 2015, SA was sentenced to a term of imprisonment of three years and two months. A non-parole period of 24 months was fixed.[1]
[1]DPP (Cth) v Afford (Unreported, County Court of Victoria, Judge Gucciardo, 2 September 2015) (‘Reasons’).
SA sought leave to appeal against his conviction, and the Commonwealth Director of Public Prosecutions (‘the appellant’) appealed against the sentence imposed by the judge. On 4 March 2016, this Court, by majority,[2] granted SA’s application for leave to appeal, allowed the appeal, set aside SA’s conviction and sentence and entered a judgment and verdict of acquittal.[3] The Director’s appeal against sentence therefore lapsed.
On 10 May 2017, the High Court allowed an appeal by the Director against this Court’s decision and ordered that SA’s appeal against conviction be dismissed.[4] The matter was then remitted by the High Court to this Court to determine the Director’s appeal against sentence.[5]
The Director’s grounds of appeal against sentence are as follows:
1.The sentencing judge erred in characterising the fault element of recklessness as a factor mitigating the offending and reducing SA’s moral culpability for the…
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
DPP (Cth) v Afford [2017] VSCA 201
Case
[2017] VSCA 201
Decision Date
CaseChat Overview and Summary
In the case of the Director of Public Prosecutions (Commonwealth) v Afford, the respondent was convicted for the importation of a commercial quantity of heroin into Australia. The respondent pleaded not guilty, but was found guilty by the trial judge. The respondent was sentenced to imprisonment for three years and two months, with a non-parole period of two years. The Director of Public Prosecutions (Commonwealth) appealed the sentence as manifestly inadequate.
The legal issues before the court were whether the sentence was manifestly inadequate and whether the residual discretion should be exercised to increase the sentence. The court had to consider the nature and circumstances of the offence, the respondent's prospects of rehabilitation, and the need for the sentence to reflect the community's condemnation of the conduct. The court also had to consider the principles of parity and proportionality in sentencing.
The court found that the sentence was manifestly inadequate. The respondent had intentionally imported a commercial quantity of heroin, which was 1.61 times the commercial quantity. The respondent was reckless as to whether the substance was a border controlled drug. The respondent had good prospects for rehabilitation, but the sentence did not adequately reflect the seriousness of the offence. The court exercised its residual discretion to increase the sentence to imprisonment for 10 years, with a non-parole period of seven years. The appeal was allowed, and the sentence was varied accordingly.