Elliot v The King - [2024] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0207

MITCHELL ELLIOT	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	8 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 58
JUDGMENT APPEALED FROM:	DPP v Elliott (County Court of Victoria, Judge
Hassan, 20 October 2023)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A

SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Contravention of Community Correction Order – Trafficking in a drug of dependence – Whether sentencing judge erred by mistaking maximum penalty – Aggregate sentence – Whether sentence manifestly excessive –

Application for leave refused.

Sentencing Act 1991, s 16(3C).

R v Beary (2004) 11 VR 151; DPP v Aydin and Kirsch [2005] VSCA 86; Nelis v The King

[2023] VSCA 128; Leimonitis v The Queen [2018] VSCA 198 discussed.

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Counsel for written submissions

Applicant:	Ms J Ball
Respondent:	Mr G Buchhorn
Solicitors
Applicant:	Tony Hannebery Lawyers
Respondent: BOYCE JA:	Solicitor for the Office of Public Prosecutions

Introduction
1          The applicant pleaded guilty on 4 October 2022 before Judge Lauritsen in the County
Court to two charges of trafficking in a drug of dependence[1] — charge 1 (cocaine) and charge 3 (1,4-Butenadiol); four charges of possession of a drug of dependence[2] —
[1]
[2]
charge 2 (alprazolam), charge 4 (ketamine), charge 5 (testosterone) and charge 7
(MDMA); and one charge of handling stolen goods[3] — charge 6. The applicant also
[3]
pleaded guilty to related summary offences: dealing with property suspected of being
proceeds of crime[4] — summary charge 12 (cash); possession of a prohibited weapon[5] — summary charge 13 (a flick knife); and commit indictable offence whilst on bail[6] —
[4]
[5]
[6]
summary charge 23 (trafficking in a drug of dependence).
2          After a plea hearing, the applicant was sentenced on 13 October 2022 by Judge
Lauritsen. On charge 1 he was sentenced to 243 days’ imprisonment. Additionally, on
charge 1, and on the remaining indictable and summary charges, the applicant was
convicted and placed on a three year Community Correction Order (‘CCO’) with
conditions requiring him to perform 100 hours of unpaid community work; undergo assessment and treatment (including testing) for drug abuse or dependency; undergo mental health assessment and treatment; and be supervised, monitored and managed as directed.
3          Approximately a year later, on 16 October 2023, the applicant was charged with having contravened the CCO imposed by Judge Lauritsen. The contravention proceeding was heard before Judge Hassan on 20 October 2023. After a plea, Judge Hassan, on 20 October 2023, sentenced the applicant for the offence of having contravened the Judge Lauritsen CCO and re-sentenced the applicant on the offences originally dealt with by Judge Lauritsen.
4          Judge Hassan sentenced the applicant to imprisonment for one month on the contravention offence. On charges 1 to 7, which concerned…

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 Elliot v The King

Details

AGLC: Elliot v The King [2024] VSCA 58
Case: [2024] VSCA 58
Decision Date: 8 April 2024

CaseChat Overview and Summary

The matter of Elliot v The King involved the applicant seeking leave to appeal against his sentence imposed by the County Court of Victoria. The applicant, having previously pleaded guilty to trafficking in a drug of dependence, was found to have breached a Community Correction Order by contravening its conditions. The primary issue before the Supreme Court of Victoria was whether the sentencing judge had erred in imposing a sentence, and if the aggregate sentence was manifestly excessive. The Supreme Court was required to determine whether the sentence was a result of a mistake regarding the maximum penalty, and if the overall sentence was disproportionate to the crime committed.

The Court examined the relevant statutory provisions under the Sentencing Act 1991, focusing on section 16(3C). It considered previous cases such as R v Beary, DPP v Aydin and Kirsch, Nelis v The King, and Leimonitis v The Queen. These cases provided guidance on the principles of sentencing, including the requirement for proportionality and the role of sentencing discretion. The Supreme Court analysed whether the sentencing judge had considered all relevant factors and whether the sentence imposed was within the permissible range.

Upon review, the Supreme Court determined that the sentencing judge did not err in imposing the sentence, nor was the aggregate sentence manifestly excessive. The Court held that the sentence was proportionate to the severity of the offence, taking into account the applicant's criminal history and the need to deter future offences. The Supreme Court found no evidence of a mistake regarding the maximum penalty, and thus, the sentence was deemed appropriate. Consequently, the application for leave to appeal was refused.

No orders were made by the Court beyond the refusal of the application for leave to appeal. The sentence imposed by the County Court of Victoria remained in effect.

Orders