DPP v Fleiner - [2010] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS	S APCR 2009 0735
	Appellant
v
ANDREW JOHN FLEINER	Respondent

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JUDGES	NETTLE and HARPER JJA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 June 2010
DATE OF JUDGMENT	18 June 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 143
JUDGMENT APPEALED FROM	DPP v Fleiner (Unreported, County Court of Victoria, Acting Judge Cotterell, 23 June 2009)

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CRIMINAL LAW – Sentence – Crown appeal – Whether manifestly inadequate – Trafficking in a commercial quantity of a drug of dependence, theft, possession of drugs of dependence and possession of a traffickable quantity of unregistered firearms – Sentenced to a total effective sentence of six years imprisonment – Non parole period of four years – Whether too much weight given to mitigating factors – Whether sentencing discretion miscarried – Prior convictions for cultivating a commercial quantity of a narcotic drug – Offender sentenced as a serious drug offender – Protection of the community – Specific and general deterrence – Sentencing Act 1991, s 6B – Firearms Act 1996, s 7C – R v Clarke [1996] 2 VR 520 and DPP v Bright (2006) 163 A Crim R 538 considered – Whether something more than manifest inadequacy alone is required to warrant appellate intervention – Appeal allowed – Total effective sentence increased to 8 years’ imprisonment – Non parole period increased to five years.

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Appearances:	Counsel	Solicitors
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC	Lewenberg & Lewenberg

NETTLE JA

HANSEN AJA:

We have had the advantage of reading in draft the reasons for judgment of Harper JA and agree with his Honour that the appeal should be allowed and the respondent re-sentenced as he proposes.

HARPER JA:

On 26 May 2009, the respondent pleaded guilty in the County Court to one count of trafficking in a commercial quantity of a drug of dependence (cannabis) (Count 1); one count of theft (Count 2); one count of trafficking in a drug of dependence (MDMA, or ‘ecstasy’) (Count 3); one count of possession of a drug of dependence (cocaine) (Count 4); one count of possession of a drug of dependence (methylamphetamine) (Count 5); one count of possession of a drug of dependence (Lysergic Acid Diethylamide, or ‘LSD’) (Count 6); and possession of a traffickable quantity of unregistered firearms (Count 7). He also pleaded to the summary offence of possession of property suspected of being the proceeds of crime.

After a plea hearing, the respondent was on 23 June 2009 sentenced on Count 1 to 4 years’ imprisonment. This was the base sentence. On Count 2, he was sentenced to 12 months’ imprisonment; on Count 3, to 2 years’ imprisonment; on each of Counts 4, 5 and 6, to 3 months’ imprisonment; and on Count 7 to 3 years’ imprisonment. He was also sentenced, on the summary charge, to 4 months’ imprisonment. The sentencing judge directed that…

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 v Fleiner

Details

AGLC: DPP v Fleiner [2010] VSCA 143
Case: [2010] VSCA 143
Decision Date: 18 June 2010

CaseChat Overview and Summary

The case of DPP v Fleiner involved the Director of Public Prosecutions appealing against the sentencing of Fleiner, who had been found guilty of trafficking in a commercial quantity of a drug of dependence, theft, possession of drugs of dependence, and possession of a traffickable quantity of unregistered firearms. The trial judge sentenced Fleiner to a total effective sentence of six years imprisonment with a non-parole period of four years. The Crown sought an appeal on the basis that the sentence was manifestly inadequate.

The primary legal issue before the court was whether the sentence imposed was manifestly inadequate, and if so, whether the appellate court should intervene. The Crown argued that the trial judge had given too much weight to mitigating factors and that the sentencing discretion had miscarried. Fleiner had prior convictions for cultivating a commercial quantity of a narcotic drug and was sentenced as a serious drug offender. The court needed to consider the principles of protection of the community, specific and general deterrence, and whether the sentence reflected the seriousness of the offending.

The court considered that the sentence imposed was manifestly inadequate. The trial judge had failed to adequately address the seriousness of the offending and the need for specific and general deterrence. The court held that the trial judge had given too much weight to mitigating factors, which had resulted in a sentence that did not reflect the gravity of the offences. The court noted that while manifest inadequacy is a ground for appellate intervention, it is not the only consideration. The sentencing discretion must be exercised in a manner that appropriately balances the principles of sentencing, including the need to protect the community and deter similar offending. The court increased the total effective sentence to eight years imprisonment with a non-parole period of five years.

Orders