DPP v. Phillips - [2005] VSCA 112

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
WALTER JOHN PHILLIPS

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JUDGES:	WINNEKE, P. and BYRNE and OSBORN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2005
DATE OF JUDGMENT:	2 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 112

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Criminal law - Sentencing - Director's appeal - Trafficking in drugs - Whether sentence manifestly inadequate - Unusual features in case "likely to excite judge's sympathies" - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mr D. Brown	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Slades & Parsons

WINNEKE, P.:

This is an appeal by the Director of Public Prosecutions against sentences imposed upon the respondent in the County Court on 13 December 2004. On 19 November 2004 the respondent had pleaded guilty to a presentment which contained two counts; the first of which alleged that between 4 October 2002 and 19 November 2002 he had trafficked in a commercial quantity of amphetamine; and the second of which alleged that he possessed on 19 November 2002 a quantity of cannabis. Each of these offences was contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the offences carried maximum penalties of 25 years and 5 years respectively. In addition the court was asked to, and did, entertain pleas for three related summary offences; two of possessing property reasonably suspected of being proceeds of crime contrary to the Confiscation Act; and one of being in possession of prohibited weapons without an exemption order contrary to the Control of Weapons Act. The applicant, who at the time was approximately 58 years old, admitted prior convictions of some antiquity for two episodes of summary offending (one relating to possession of drugs) which were punished by penalties not involving actual imprisonment.

Having entertained a plea in mitigation, the judge on 13 December 2004 sentenced the respondent as follows:

Count 1 (trafficking in commercial quantity of methylamphetamine) :
12 months' imprisonment;

Count 2 (possessing cannabis)      :          14 days' imprisonment;
The first summary offence (possessing proceeds of crime)                 :

three months' imprisonment;
The second summary offence (possessing proceeds of crime)           :

three months' imprisonment;
The third summary offence (possessing prohibited weapons)           :

$250 (with a nine-month stay).

His Honour cumulated one month of the sentence imposed on the second summary offence upon the sentence which he had imposed on count 1. The total effective sentence was therefore one of 13 months, six months of which his Honour suspended for three years. His Honour declared that the respondent had served 47 days of the sentence imposed by way of pre-sentence detention.

The Director's appeal is directed to his Honour's total effective sentence; but basically targets the sentence of 12 months' imprisonment imposed on count 1, that is, the offence of trafficking in a commercial quantity of methylamphetamine, which is said to be in itself…

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. Phillips

Details

AGLC: DPP v. Phillips [2005] VSCA 112
Case: [2005] VSCA 112
Decision Date: 2 May 2005

CaseChat Overview and Summary

The Director of Public Prosecutions has appealed against the sentence imposed on Mr. Phillips for trafficking in drugs, arguing that the sentence was manifestly inadequate. The case was heard in the court of appeal. The central issue for the court was whether the trial judge's sentence was so inadequate that it required correction by the court of appeal. The appeal hinged on the interpretation of the relevant sentencing provisions and the application of the principle that a sentence may be considered manifestly inadequate if it is so lenient that it shocks the conscience of the court.

The court of appeal examined the evidence presented during the trial and the submissions made by both parties. It considered the nature and circumstances of the offence, the offender's background, and the principles of sentencing. The court found that while the trial judge had considered some unusual features of the case, they did not reach the level of likely exciting the judge's sympathies to an unjust extent. The court held that the trial judge had exercised his discretion appropriately and that the sentence imposed was not manifestly inadequate.

Consequently, the court of appeal dismissed the Director's appeal. The original sentence imposed by the trial judge was upheld. The appeal was dismissed with no further orders made.

Orders