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DPP v Richardson

DPP v Richardson

Case [2023] VSCA 241 12 October 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0193

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JAMES RICHARDSON	Respondent

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JUDGES:	EMERTON P, PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2023
DATE OF JUDGMENT:	12 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 241
JUDGMENT APPEALED FROM:	[2022] VCC 2060 (Judge Brookes)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Trafficking in large commercial quantity of drug of dependence – Where offender already serving sentence – Where offending breached parole – Where offender suffered stroke and had acquired brain injury – Total effective sentence 4 years – Non-parole period 3 years – Sentence to be served cumulatively upon sentence currently being served – Whether sentence manifestly inadequate – Whether too much weight given to R v Verdins factors – Whether judge erred in application of totality principle – Whether judge erred in application of principle of mercy – Appeal dismissed.

Criminal Procedure Act 2009, ss 207–9; Drugs, Poisons and Controlled Substances Act 1981, ss 71, 73; Crimes Act 1958, s 195; Bail Act 1977, s 30B; Corrections Act 1986, s 78A; Sentencing Act 1991, ss 5(2)(b), 6D, 16(3B).

Director of Public Prosecutions v Jabbour [2023] VSCA 204, Director of Public Prosecutions v Leach (2003) 139 A Crim R 64, R v Clarke [1996] 2 VR 520, R v Osenkowski (1982) 30 SASR 212, Director of Public Prosecutions v Bowen (2021) 65 VR 385, applied.

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Counsel
Appellant:	Mr B F Kissane KC with Mr L McAuliffe
Respondent:	Mr J Gullaci SC with Ms C Ives
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Victoria Legal Aid

EMERTON P
PRIEST JA
TAYLOR JA:

Introduction

On 26 October 2022, following a sentence indication given by the sentencing judge in the County Court of Victoria,[1] the respondent pleaded guilty to five drug charges, including a charge of attempting to traffick a large commercial quantity of 1,4‑Butanediol (‘1,4-BD’) contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’), and three related summary charges.
[1]See generally Criminal Procedure Act 2009, ss 207–9.
The quantity of 1,4-BD trafficked for the purposes of charge 1 was 100 kgs, which was five times the amount of a large commercial quantity, as defined.
On 21 November 2022, the respondent was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempt to traffick in a drug of dependence (1,4-BD) in a large commercial quantity, contrary to s 71(1) of the Drugs Act	Life and 5,000 penalty units	4 years’ imprisonment	Base
2	Possession of a drug of dependence (methylamphetamine), contrary to s 73(1) of the Drugs Act	1 year’s imprisonment and/or 30 penalty units, or 5 years’ imprisonment and/or 400 penalty units[2]	6 months’ imprisonment	N/A
3	Possession of a drug of dependence (1,4‑BD), contrary to s 73(1) of the Drugs Act	1 year’s imprisonment and/or 30 penalty units, or 5…

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 Richardson

Details

AGLC: Director of Public Prosecutions v Richardson [2023] VSCA 241
Case: [2023] VSCA 241
Decision Date: 12 October 2023

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed upon Richardson for trafficking in a large commercial quantity of a drug of dependence. The County Court of Victoria handed down a sentence of four years imprisonment, with a non-parole period of three years, to be served cumulatively with the sentence Richardson was already serving for breaching parole. Richardson had already been serving a 15-month sentence for breaching parole conditions. The Crown argued that the sentence was manifestly inadequate, that the judge had given too much weight to the factors set out in R v Verdins, and that the judge had erred in applying the totality principle and the principle of mercy. The Court of Appeal heard the appeal and made its decision based on the arguments presented.

The primary legal issues in this appeal concerned whether the sentence was manifestly inadequate, whether the trial judge had given too much weight to the Verdins factors, and whether the judge had erred in applying the totality principle and the principle of mercy. The Court of Appeal considered these issues in light of the relevant legislation and precedent. The appeal hinged on the interpretation and application of the sentencing principles and the specific circumstances of the case.

In dismissing the appeal, the Court of Appeal held that the sentence was not manifestly inadequate. The court found that the judge had appropriately taken into account the totality of the offender's criminal history, including his prior breaches of parole and the seriousness of his current offending. The court also held that the trial judge had not erred in applying the Verdins factors or the principle of mercy. The court considered that the judge had given appropriate weight to the offender's health issues, including his stroke and acquired brain injury, and had balanced these factors against the need to deter and protect the community. The Court of Appeal found that the trial judge had exercised his discretion reasonably and in accordance with the law.

No further orders were made.

Orders