JUDGES:	BATT, VINCENT AND EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2003
DATE OF JUDGMENT:	6 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 96

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Criminal law - Sentence – Crown appeal – Trafficking in commercial quantity of methyl-amphetamine – Possession of drugs of dependence – Sentence of nine months’ imprisonment on trafficking count, and two months’ on possession count – Total effective sentence of ten months’ imprisonment ordered to be served by Intensive Correction Order - Whether sentence manifestly inadequate or disclosed error in principle – Applicant a courier who carried the drugs between States for dealer – Whether judge justified in giving greater weight to rehabilitation than to deterrence - Discretion of court not to intervene notwithstanding that sentence manifestly inadequate – Drugs, Poisons and Controlled Substances Act 1981, ss.71, 73 – Crimes Act 1958, s.567A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. P.A. Coghlan Q.C., D.P.P. with Mr. R. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr. P.G. Priest Q.C. with Mr. M. Croucher	Haines and Polites

BATT, J.A.:

The facts relating to the offending the subject of this appeal and those relating to the offender, the respondent to the appeal, are set out in the reasons for judgment of Eames, J.A., which I have had the benefit of reading. I agree with his Honour’s conclusion that the sentence imposed on count 1 and the order that it, together with the one month’s imprisonment cumulated from count 2, be served by way of intensive correction order was manifestly inadequate; but I cannot, with respect, concur in his Honour’s further conclusion that in the exercise of its discretion this Court should, nevertheless, dismiss the appeal.

In my opinion, the sentence imposed, as I have identified it, was so disproportionate to the seriousness of the crime the subject of count 1 as to shock the public conscience and it would be most unfortunate if a proper exercise of the Court’s reserve discretion required it to dismiss the appeal. The only ground on which such an exercise of discretion might arguably be based is that relied on by Eames, J.A., namely, that, when required or proper discounts or allowances are made from the sentence which this Court would pass if sentencing at first instance, the resultant sentence would not be sufficiently different from that imposed to warrant allowing the appeal and re-sentencing the respondent.

In order to test whether that is so in this case it is necessary to form a view as to the sentence that should have been passed in the first instance on count 1. In my view, without being specific, it is a sentence in the vicinity of 3 to 4 years’ imprisonment, probably without any fine. I say this because the very serious nature of this offence of trafficking in methylamphetamine in a commercial quantity, objectively considered, required…

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 Leach

Details

AGLC: DPP v Leach [2003] VSCA 96
Case: [2003] VSCA 96
Decision Date: 6 August 2003

CaseChat Overview and Summary

The case of DPP v Leach involved an appeal by the Director of Public Prosecutions against the sentence handed down to the defendant, Leach, who was found guilty of trafficking in a commercial quantity of methyl-amphetamine and possessing drugs of dependence. The appeal was heard in the Court of Appeal. The Crown sought to argue that the sentence was manifestly inadequate and that the trial judge had erred in principle by giving greater weight to rehabilitation than to deterrence.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate and whether it disclosed an error in principle. The Crown argued that the sentence of nine months' imprisonment on the trafficking count and two months' on the possession count, which resulted in a total effective sentence of ten months' imprisonment to be served by an Intensive Correction Order, was manifestly inadequate. The court was required to consider whether the sentence was so inadequate that it warranted intervention by the Court of Appeal.

In determining the appeal, the court considered the nature of Leach's role in the drug trafficking operation, his level of culpability, and the objectives of sentencing. The court held that although the sentence was manifestly inadequate, it was not so inadequate as to warrant intervention by the Court of Appeal. The court found that the trial judge had not erred in principle by giving greater weight to rehabilitation than to deterrence, as Leach was a courier who carried the drugs between states for a dealer. The court held that the trial judge had exercised their discretion appropriately and that there was no error in principle in the sentence imposed. The appeal was therefore dismissed.

The court did not make any further orders beyond dismissing the appeal. The sentence imposed by the trial judge remained in place, and Leach was required to serve his sentence by an Intensive Correction Order. The court's decision highlights the importance of considering the nature of the offence and the offender's level of culpability when determining an appropriate sentence. It also demonstrates the court's reluctance to intervene in a sentence unless it is so inadequate as to warrant intervention.

Orders