DPP v Willis & Hossack - [2009] VSCA 14

SUPREME COURT OF VICTORIA
COURT OF APPEAL

DIRECTOR OF PUBLIC PROSECUTIONS	No 735 of 2008
v
JOSHUA WILLIS
and DIRECTOR OF PUBLIC PROSECUTIONS	No 737 of 2008
v
SHANE HOSSACK

REASONS FOR JUDGMENT
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JUDGES:	BUCHANAN and VINCENT JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2008
DATE OF ORDERS:	4 December 2008
DATE OF REASONS:	17 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 14

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CRIMINAL LAW – Sentence – Appeal by the Director of Public Prosecutions – Cultivation, possession and trafficking of a drug of dependence – Whether proper weight attributed to seriousness of offending – Commercial quantity – Mitigating factors – Proper consideration given – No error – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent Willis	Mr P G Priest QC with Mr L R C Gwynn	Garde-Wilson Lawyers
For the Respondent Hossack	Mr J D Montgomery S C	Andrew George Solicitors

BUCHANAN JA
VINCENT JA
ROBSON AJA:

An appeal by the Director of Public Prosecutions against the sentences imposed upon each of the respondents in the County Court on 12 June 2008 for the cultivation, possession and trafficking in drugs of dependence was dismissed by this Court, on 4 December 2008. At that time, we indicated that the formal statement of our reasons would be delivered at a later date.

Background

In July 2006, the Australian Crime Commission commenced an investigation into the manufacture and sale of illegal firearms, focused principally upon the activities of a man named Andrew Fleiner.

On 10 October 2006, telephone intercept warrants were obtained on two services used by him. Monitored calls revealed that Fleiner was cultivating cannabis plants at six locations, including houses at 42 Oaktree Drive, Hampton and 7 Willis Court, Hampton Park. It was also learned through those calls that the respondent, Willis, assisted Fleiner at the Oaktree Drive premise; and that the respondent Hossack was involved in the activities conducted at Willis Court.

Joshua Willis

Surveillance undertaken between November and December 2006, disclosed that both Fleiner and Willis attended at the Oaktree Drive premises at various times and that they were in regular telephone contact.

In one intercepted phone call made on 18 October 2006 Fleiner asked Willis to sell cannabis for $80 to a person referred to as ‘Wendy’. In another, on 1 December 2006, it emerged that Willis had sold for $3,750 cannabis obtained from Fleiner.

Consequently, on 1 December 2006, police executed search warrants at Oaktree Drive where 75 plants were discovered, weighing a total of 69.58 kg.

On 1 December 2006, the police also executed search warrants at the residential premises of Willis in Berwick Springs where they seized the following items:

(a) One snap lock bag containing green vegetable matter in the en-suite;

(b) A small jewellery box containing a small quantity of green vegetable matter in the walk-in-robe; and

(c) An unregistered black coloured rifle stock ‘Piers Dev’ above…

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 Willis & Hossack

Details

AGLC: Director of Public Prosecutions v Willis and Hossack [2009] VSCA 14
Case: [2009] VSCA 14
Decision Date: 17 February 2009 (Date of reasons. The date of orders was 4 December 2008)

CaseChat Overview and Summary

The case of DPP v Willis & Hossack involved the prosecution of two individuals for their involvement in the cultivation, possession, and trafficking of a drug of dependence. The matter was appealed by the Director of Public Prosecutions (DPP) in relation to the sentences imposed by the trial judge, who had found the defendants guilty of the charges brought against them. The appeal was heard in the Supreme Court of New South Wales. The central issue before the court was whether the trial judge had appropriately assessed the gravity of the defendants' criminal activities and whether sufficient consideration was given to the mitigating factors presented in the defendants' favour.

The court examined the principles governing the imposition of sentences in cases involving serious drug offences, particularly those involving commercial quantities of drugs. It was necessary to determine if the trial judge had erred in assessing the seriousness of the offending and the extent to which the mitigating factors should have influenced the final sentence. The court considered the nature of the offences, the quantities involved, and the defendants' roles within the criminal enterprise, alongside any mitigating factors presented, such as the defendants' remorse and cooperation with authorities. The court found that the trial judge had appropriately weighed the seriousness of the offending and had given proper consideration to the mitigating factors.

In its reasoning, the court found that the trial judge had thoroughly examined the evidence and circumstances of the case, including the commercial scale of the drug operation and the defendants' roles within it. The court held that the trial judge had not erred in the assessment of the seriousness of the offending, nor in the consideration of the mitigating factors. The court was satisfied that the sentences imposed were commensurate with the gravity of the crimes committed. Consequently, the appeal was dismissed, and the original sentences were upheld.

Orders