JUDGES:	MAXWELL P, REDLICH JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2016
DATE OF JUDGMENT:	30 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 204	First Revision: 29 November 2017 (footnote 129 correction)
JUDGMENT APPEALED FROM:	DPP v Masange [2016] VCC 739 (Judge Bourke); DPP v Kachunga [2016] VCC 806 (Judge Bourke)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Import commercial quantity of border controlled drug – Rolled-up charge – Ten separate importations – 3.2 times commercial quantity – Total effective sentence seven years and six months’ imprisonment – Non-parole period four years – Whether manifestly inadequate – Plea of guilty – Significant role in criminal hierarchy – Considerable reward expected – Offending over period of months – Disadvantaged background – Rehabilitation – Comparable cases – Prosecutor’s duty to assist sentencing judge to avoid appealable error – Whether silence productive of error – Whether residual discretion should be exercised – Appeal allowed – Parity considerations – Respondent resentenced – Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; Director of Public Prosecutions (Cth) v Thomas (2016) 315 FLR 31 discussed – Criminal Code Act 1995 (Cth) s 307.1.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Possess commercial quantity of border controlled drug – 3.7 times commercial quantity – Attempt to possess marketable quantity of border controlled drug – 0.67 times commercial quantity – Total effective sentence five years’ imprisonment – Non-parole period two years and six months – Whether manifestly inadequate – Plea of guilty – Trusted operative – Modest reward expected – Disadvantaged background – Comparable cases – Respondent released on parole while appeal pending – In full-time employment, stable relationship – Whether residual discretion should be exercised – Appeal dismissed – Criminal Code Act 1995 (Cth) ss 307.6, 307.8.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For Respondent Masange	Mr J Gullaci	Stephen Andrianakis & Associates
For Respondent Kachunga	Mr D Gurvich QC with Mr P Smallwood	Paul Vale Criminal Law

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MAXWELL P
REDLICH JA:

We have had the considerable advantage of reading in draft the reasons for judgment of Beale AJA. His Honour has set out the relevant circumstances of the offending and the personal circumstances of each offender. He has comprehensively reviewed the comparable cases to which we were referred and has concluded that the sentences imposed on both respondents were manifestly inadequate, that is, outside the range reasonably open to the judge in the circumstances of the case.[1]
[1]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (‘Karazisis’).

We respectfully agree with that conclusion, and with his Honour’s reasons for it. His Honour would, however, dismiss…

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.

Continue reading DPP (Cth) v Masange

Details

AGLC: DPP (Cth) v Masange [2017] VSCA 204
Case: [2017] VSCA 204
Decision Date: 30 August 2017

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (Cth) versus Masange, heard in the Supreme Court of Queensland, involved an appeal by the Crown against the sentences handed down to two individuals, Masange and another defendant, following their convictions for various drug-related offences. The appellant, the Director of Public Prosecutions, argued that the sentences imposed were manifestly inadequate, given the gravity of the offences and the respective roles of the respondents in the criminal activities.

The court was tasked with determining whether the sentences were manifestly inadequate, considering the nature and circumstances of the offences, including the quantities of drugs involved, the roles of the respondents in the criminal enterprises, and the sentencing principles applicable to drug trafficking offences under the Criminal Code Act 1995. The court also needed to assess the impact of the respondents' pleas of guilty, their backgrounds, and potential for rehabilitation on the appropriate quantum of their sentences.

In its judgment, the court found that the sentence imposed on Masange was manifestly inadequate and allowed the Crown's appeal. The court considered the significant role Masange played in the criminal hierarchy, the considerable reward he expected to gain, and the quantity of drugs involved, which was 3.2 times the commercial quantity. Despite Masange's disadvantaged background and potential for rehabilitation, the court held that the total effective sentence of seven years and six months, with a non-parole period of four years, did not adequately reflect the seriousness of the offences. The court also noted the prosecutor's duty to assist the sentencing judge to avoid appealable error and found that the silence of the prosecutor in this case did not produce an error that warranted a different outcome. The court exercised its residual discretion and resentenced Masange. The appeal against the sentence of the other defendant was dismissed, as the court found the sentence to be appropriate in all the circumstances, considering the lesser role of the defendant, the smaller quantity of drugs involved, and the defendant's prospects for rehabilitation.

The court ordered that Masange be resentenced, while affirming the sentence of the other defendant. The decision underscores the importance of considering the totality of the circumstances, including the role of the offender in the criminal activity, the quantity of drugs involved, and the prospects for rehabilitation, in determining the appropriate sentence for drug trafficking offences.

Orders