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DPP v McInnes

DPP v McInnes

Case [2009] VSCA 144 19 June 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 815 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

EZRA JAMES McINNES

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JUDGES:	MAXWELL P, BUCHANAN and ASHLEY JJA
WHERE HELD:	MILDURA
DATE OF HEARING:	4 May 2009
DATE OF JUDGMENT:	19 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 144
JUDGMENT APPEALED FROM:	R v Ezra James McInnes (Unreported, County Court of Victoria, Judge Nicholson, 14 August 2008)

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CRIMINAL LAW – Sentencing – Crown appeal – Trafficking in not less than a large commercial quantity of ecstasy – Delay of 12 months between arrest and sentence not inordinate – Effect of delay on accused relevant – Judge failed to act on concession by defence as to quantity of drug trafficked – Sentence of five years’ imprisonment with a minimum of two years manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Mr C B Boyce	Ronald V Tait

MAXWELL P
BUCHANAN JA
ASHLEY JA:

The respondent was arraigned in the County Court and pleaded guilty to a presentment containing one count, which alleged that between 10 November 2006 and 10 August 2007, the respondent trafficked in not less than a large commercial quantity of 3,4-methylenedioxy-N-methylamphetamine (MDMA) (commonly known as ‘ecstasy’). A large commercial quantity of ecstasy mixed with another substance is one kilogram. The maximum term of imprisonment for the offence is imprisonment for life.

The prosecutor tendered a written summary of his opening. The summary stated that on 9 August 2007, members of the police force were conducting surveillance on the respondent’s house. One Luke Brodie visited the house. On leaving, his vehicle was intercepted and searched by the police, who found 100 ecstasy tablets. Brodie told the police that he had been purchasing from 100 to 500 ecstasy tablets a week from the respondent for approximately two months. The following day the police arrested the respondent while he was sitting in his car in a car park. The police found 3,430 ecstasy tablets in a sports pack on the back seat of the car, a further 10 tablets on the person of the respondent and cash in the sum of $2,640.

In the course of a record of interview the respondent was asked about the quantity of drugs in which he had trafficked and the period of time over which he had done so. The respondent said in answer to one question that he had been trafficking since ‘a little bit before’ 21 March 2007. In answer to another question he said that he would have trafficked ‘in the vicinity of 3,300 per week.’ A hand-written list was found in the possession of the respondent when he was arrested. The list contained various sums of money against names. The respondent explained that it was a list of persons from whom he was to collect money for the supply of drugs.

When the respondent was arrested, the police seized…

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 McInnes

Details

AGLC: DPP v McInnes [2009] VSCA 144
Case: [2009] VSCA 144
Decision Date: 19 June 2009

CaseChat Overview and Summary

The case before the court was an appeal by the Director of Public Prosecutions against the sentence of five years’ imprisonment, with a minimum of two years, imposed on the respondent, McInnes, for trafficking in not less than a large commercial quantity of ecstasy. The court heard arguments on whether the sentence was manifestly inadequate and whether the delay in sentencing should have been considered inordinate. The court was required to determine if the delay in sentencing had a significant impact on the accused and whether the trial judge properly considered the concessions made by the defence regarding the quantity of drugs involved.

The court addressed the issue of whether the delay in sentencing, which was 12 months, was inordinate and whether it should have been taken into account in the sentencing process. The court found that while the delay was not inordinate, the effect of the delay on the accused was relevant to the sentencing decision. The court further examined whether the trial judge had properly considered the concessions made by the defence concerning the quantity of drugs trafficked. The court concluded that the judge had failed to act on the concessions, which should have resulted in a higher sentence.

The court found that the sentence imposed by the trial judge was manifestly inadequate, taking into account the nature and circumstances of the offence. The court highlighted that the delay in sentencing, coupled with the failure to properly consider the concessions, warranted a higher sentence. Consequently, the court allowed the appeal and ordered that the case be remitted to the trial court for resentencing. The final orders were that the appeal be allowed, the sentence of five years’ imprisonment with a minimum of two years be set aside, and the matter be remitted to the trial court for resentencing, considering the appropriate quantum of sentence.

Orders