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DPP v S (No 2)

DPP v S (No 2)

Case [2009] VSCA 127 5 June 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 590 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS
	v
S [NO 2]

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JUDGES:	VINCENT, NETTLE and REDLICH JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	20 and 27 May 2009
DATE OF JUDGMENT:	5 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 127	1^st Revision – 14 April 2010 Para [1]

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CRIMINAL LAW – Sentencing – Crown appeal – Cultivation of a narcotic plant in not less than a large commercial quantity – Breach of undertaking to give evidence against co–accused – Breach of implied obligation to give truthful evidence – Respondent sentenced to six years’ imprisonment with a non-parole period of three years and six months – Appeal allowed – Respondent re-sentenced to a term of eight years’ imprisonment with a non-parole period of six years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Mr M J Croucher	Anthony Isaacs

VINCENT JA
NETTLE JA
REDLICH JA:

This is an appeal by the Director of Public Prosecutions under s 567(1A) of the Crimes Act 1958 against a sentence of six years’ imprisonment[1] with a non-parole period of three years and nine months imposed on the respondent upon pleading guilty in the County Court at Melbourne to one count of cultivation of a narcotic plant, namely, cannabis in not less than a large commercial quantity.
[1]The maximum penalty for the offence is life imprisonment and in addition to imprisonment, a penalty of not more than 5,000 penalty units: Drugs, Poisons and Controlled Substances Act 1981, s 72.

The total weight of plants and other cannabis was 1,511.83 kg which is over six times a large commercial quantity of cannabis.[2] According to the Crown opening on the plea, the yield estimate was between approximately $843,500 and $5,061,000 depending on whether the cannabis was sold in kilograms or grams. The offence was, therefore, a serious example of a serious crime. The judge, however, allowed a substantial discount on the sentence, pursuant to s 5(2AB) of the Sentencing Act 1991, in view of undertakings given by the respondent on 30 August 2005 to:
[2]250 kg.

· assist the prosecution of offences against the two co-accused;

· give evidence at the committal and the trial of both co-accused; and

· give evidence in accordance with two sworn statements dated 23 May 2005 and 9 June 2005.

On 10, 11 and 12 March 2009 the respondent gave evidence before Judge Howie in the County Court at the trial of Athanasiou and Cozzi. His testimony was, however, demonstrably evasive and untruthful.

Among other sections of his testimony which may properly be so described were the following:

How long had you now that person Peter [Athanasiou]? - - - Several years.
Do you see that person that you know as Peter in this court? - - - I’m not sure.
I’ll ask you…

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 S (No 2)

Details

AGLC: Director of Public Prosecutions v S (No 2) [2009] VSCA 127
Case: [2009] VSCA 127
Decision Date: 5 June 2009

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus S (No 2) involved an individual found guilty of cultivating a narcotic plant in a large commercial quantity. The appeal was brought by the Crown against the original sentence, arguing that it was manifestly inadequate. The High Court of Australia was tasked with reviewing the sentence imposed on the respondent, who had been sentenced to six years’ imprisonment with a non-parole period of three years and six months. The Crown argued that the primary judge had failed to sufficiently consider the seriousness of the offences and the need for general deterrence.

The legal issues before the court revolved around the principles of sentencing for serious drug offences, particularly the gravity of cultivating a large commercial quantity of a narcotic plant. The court needed to determine whether the original sentence was manifestly inadequate and whether the respondent's culpability and the need for general deterrence were adequately considered. Additionally, the court had to consider the breaches of the undertaking to give evidence against co-accused and the implied obligation to give truthful evidence, and how these factors should influence the sentencing.

The court found that the original sentence was indeed manifestly inadequate. It held that the primary judge had failed to sufficiently account for the gravity of the offences and the need for general deterrence. The court emphasised that cultivating a large commercial quantity of a narcotic plant is a serious crime that warrants a significant punitive response. The breaches of the undertaking to give evidence and the implied obligation to give truthful evidence further aggravated the respondent's culpability. After re-evaluating the totality of the circumstances, the court determined that a sentence of eight years’ imprisonment with a non-parole period of six years was appropriate. This sentence reflected the seriousness of the offences and the need to deter similar conduct in the future.

The court allowed the Crown's appeal and re-sentenced the respondent to a term of eight years’ imprisonment with a non-parole period of six years. This decision underscored the importance of adequately addressing the gravity of serious drug offences and the need for general deterrence in sentencing.

Orders