Director of Public Prosecutions v [KMD] (Unreported, County Court of Victoria, Judge Allen, 7 April 2014)
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Drug trafficking (three charges) – High-end marketable quantities – Offender ‘near the top’ of syndicates – High culpability– Sentence 11 years’ imprisonment, non-parole period of 7 years – Whether manifestly inadequate – Comparable cases – Importance of quantitative comparisons – Offender also admitted importation offences – Whether adequately taken into account – Totality – General deterrence – Residual discretion – Sentence manifestly inadequate – Resentenced (14 years’ imprisonment, non-parole period of 11 years) – Crimes Act 1914 (Cth) s 16BA, Criminal Code (Cth) ss 302.3, 307.2, Criminal Code Regulations 2002 (Cth) sch 3.
CRIMINAL LAW – Sentence – Sentencing principles – Totality – Multiple offences – Judge applied ‘moderate and cumulate’ approach – Orthodox approach requires fixing of appropriate sentences for individual offences – Orthodox approach to be followed except in special circumstances – No justification for departure in present case – Johnson v The Queen (2004) 78 ALJR 616 followed.
CRIMINAL LAW – Sentence – Sentencing principles – Parity – Sentencing relativities – Comparison with low sentence for unrelated offences – Whether ‘understandable sense of grievance’ – No parity issue – Language of ‘grievance’ to be avoided – Objective test – Whether sentencing differential reasonably open – Teng v The Queen (2009) 22 VR 706 followed.
PRACTICE AND PROCEDURE – Appeal – Sentence – Crown appeal – Time limits – Extension of time – Appellant’s solicitor sought advice on time limit from Registry officer – Erroneous advice provided and relied on – No disregard of time limit – Bona fide attempt to comply – Extension granted – Criminal Procedure Act 2009 ss 288(1), 313.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms W Abraham QC with Mr R F Pirrie
Commonwealth Director of Public Prosecutions
For the Respondent
Mr O P Holdenson QC with Ms M J Mykytowycz
Lethbridges
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MAXWELL P WEINBERG JA BEACH JA:
Summary
This appeal concerns sentencing for drug trafficking offences under the Commonwealth Criminal Code (‘theCode’). The respondent (‘KMD’) pleaded guilty to three separate charges of trafficking heroin. Each involved a ‘marketable quantity’ of heroin. Unusually, he also admitted two offences of importing a marketable quantity of heroin, and asked that those offences be taken into account in sentencing.[1]
As will appear, the sentences imposed on the trafficking charges were, respectively, 8 years’, 7 years’ and 4 years’ imprisonment. The total effective sentence was 11 years’ imprisonment, and a non-parole period of 7 years was fixed.
The sentencing task was unusually complicated. First,…
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
DPP (Cth) v KMD [2015] VSCA 255
Case
[2015] VSCA 255
Decision Date
CaseChat Overview and Summary
The case of DPP (Cth) v KMD involved the Commonwealth Director of Public Prosecutions appealing the sentence given to the respondent, KMD, who had been convicted on three drug trafficking charges. KMD was found to be involved in high-end marketable quantities of drugs and was considered to be near the top of the syndicates involved in the trafficking. The court of first instance sentenced KMD to 11 years’ imprisonment, with a non-parole period of 7 years, which the Commonwealth considered manifestly inadequate. The High Court was tasked with determining whether the original sentence was indeed manifestly inadequate and if the totality principle was correctly applied.
The legal issues before the court included whether the original sentence was manifestly inadequate given the nature and extent of KMD's involvement in drug trafficking, the culpability of the offender, and the need for general deterrence. Another issue was whether the court had adequately taken into account the totality of KMD's offending, including the importation offences he admitted to. Additionally, the court had to determine if there was a parity issue when comparing the sentence with that of low sentences for unrelated offences.
The High Court found that the original sentence was manifestly inadequate, taking into account the high-end marketable quantities of drugs involved, KMD's high culpability, and the need for general deterrence. The court held that the sentencing principle of totality required fixing of appropriate sentences for individual offences, and the orthodox approach should be followed except in special circumstances. The court concluded that there was no justification for departing from the orthodox approach in this case. The court also found no parity issue in the comparison with low sentences for unrelated offences, applying an objective test to determine whether the sentencing differential was reasonably open. The court granted an extension of time for the appeal, as the appellant's solicitor had sought advice from a Registry officer and relied on erroneous advice provided. The High Court ultimately resentenced KMD to 14 years’ imprisonment, with a non-parole period of 11 years.