DPP v Condo (Unreported, County Court of Victoria, Judge Mullaly, 10 April 2019)
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Trafficking in commercial quantity of drug of dependence, dealing with proceeds of crime – Trafficking sentence 5 years 9 months – Total effective sentence 6 years, non-parole period 4 years – Whether manifestly inadequate – Whether sentence reflected uplift in sentencing practices – Quantity just below threshold for large commercial quantity – General and specific deterrence – Relevance of maximum penalty – Appeal allowed – Respondent resentenced – Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1 applied.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr C B Boyce QC
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr D A Dann with Mr T Brown
C Marshall & Associates
MAXWELL P T FORREST JA WEINBERG JA:
On 5 April 2019 in the County Court, the respondent pleaded guilty to one charge of trafficking in a drug of dependence (methylamphetamine), two charges of knowingly dealing with proceeds of crime and two counts of possessing a drug of dependence (methylamphetamine). He was sentenced on 10 April 2019 as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Trafficking in a drug of dependence in not less than the commercial quantity
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
741 days
Section 6AAA statement:
8 years and 9 months’ imprisonment with a non-parole period of 7 years
There is one ground of appeal:
Ground 1: The sentence on charge 1, the total effective sentence and the non-parole period are manifestly inadequate.
Particulars
The sentences imposed:
(a)Failed to adequately reflect the objective gravity of the offending;
(b) Failed to give adequate weight to the principles of just punishment, denunciation, general deterrence and specific deterrence;
(c) Failed to give sufficient weight to the maximum penalty for charge 1.
The appellant did not raise any complaints regarding the individual sentences imposed on charges…
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 v Condo [2019] VSCA 181
Case
[2019] VSCA 181
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions versus Condo, the respondent, the dispute involved an appeal by the Crown against the sentencing of the respondent who had been convicted of trafficking in a commercial quantity of a drug of dependence and dealing with the proceeds of crime. The case was heard in the Court of Appeal. The Crown sought to challenge the sentencing as being manifestly inadequate and not reflecting the current uplift in sentencing practices, particularly in relation to drug trafficking offences.
The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate. The court had to consider whether the sentence reflected the current standards and whether it adequately addressed the objectives of general and specific deterrence. The Crown argued that the sentence did not sufficiently account for the gravity of the offences, especially given the large quantity of drugs involved, which was just below the threshold for a large commercial quantity. The court also needed to consider the relevance of the maximum penalty in determining whether the sentence was appropriate.
The court held that the sentence imposed by the trial judge was indeed manifestly inadequate. The sentence of 5 years and 9 months for the trafficking offence, combined with a sentence for dealing with the proceeds of crime, resulted in a total effective sentence of 6 years with a non-parole period of 4 years. The court found that this sentence did not sufficiently reflect the uplift in sentencing practices and did not adequately address the need for general and specific deterrence. The court concluded that the gravity of the offences warranted a more substantial sentence and allowed the appeal. The respondent was resentenced to a term that better reflected the current sentencing standards.
In light of the above, the court made an order that the respondent be resentenced. The specific details of the new sentence were not outlined in the text provided.