Legal Research
Cases
Ellis v The Queen

Ellis v The Queen

Case [2018] VSCA 221 31 August 2018

Criminal Liability

Sentencing

Breach of Contractual Obligations

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0088

SARAH ELLIS	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2018
DATE OF JUDGMENT:	31 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 221
JUDGMENT APPEALED FROM:	[2018] VCC 402 (Judge Chettle)

---

CRIMINAL LAW – Application for leave to appeal against sentence – Proposed ground manifest excess – Trafficking in a commercial quantity of a drug of dependence – 3.5kg of 1,4-butanediol – Relevance of profitability of drug of dependence – Offences committed whilst on bail and subject to community correction order – Application refused – DPP v Maxwell [2013] VSCA 50 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	Sarah Pratt & Associates
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
BEACH JA:

The applicant, Sarah Ellis, pleaded guilty in the County Court to offences involving the possession and trafficking of drugs of dependence and dealing with the proceeds of crime.

On 4 April 2018 she was sentenced by a judge in the County Court as follows:[1]
[1]DPP v Ellis [2018] VCC 402 (‘Reasons’).

Charge

Offence

Maximum penalty

Sentence

Cumulation

1.         Trafficking in a drug of dependence: s 71AC Drugs Poisons and Controlled Substances Act 1981 (Vic)
15 years
1 year 6 months

2.         Trafficking in not less than a commercial quantity of a drug of dependence: s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic) 25 years 4 years Base

3.      Possession of a drug of dependence: s 73(1)(a) Drugs Poisons and Controlled Substances Act 1981 (Vic) 5 penalty units Fined $200 N/A

Summary charge 7 Deal with property suspected to be proceeds of crime: s 195 Crimes Act 1958 (Vic) 2 years 3 months Concurrent

Total Effective Sentence: 4 years and 6 months imprisonment

Non-Parole Period: 3 years imprisonment

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 123 days

6AAA Statement: 7 years imprisonment with a non-parole period of 4 years

Other relevant orders: Forfeiture Order

Charge	Offence	Maximum penalty	Sentence	Cumulation
1.	Trafficking in a drug of dependence: s 71AC Drugs Poisons and Controlled Substances Act 1981 (Vic)	15 years	1 year	6 months
2.	Trafficking in not less than a commercial quantity of a drug of dependence: s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic)	25 years	4 years	Base
3.	Possession of a drug of dependence: s 73(1)(a) Drugs Poisons and Controlled Substances Act 1981 (Vic)	5 penalty units	Fined $200	N/A
Summary charge 7	Deal with property suspected to be proceeds of crime: s 195 Crimes Act 1958 (Vic)	2 years	3 months	Concurrent
Total Effective Sentence:	4 years and 6 months imprisonment
Non-Parole Period:	3 years imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:	123 days
6AAA Statement: 7 years imprisonment with a non-parole period of 4 years
Other relevant orders: Forfeiture Order

The applicant seeks leave to appeal on the following ground:

It is submitted that:
(a)The individual sentences imposed on charges 1, 2 and summary charge 7 are manifestly excessive;
(b)The orders for cumulation are manifestly excessive;
(c)The total effective sentence of 5 years imprisonment is manifestly excessive;
(d)The non-parole period of 3 years and six months is manifestly excessive.

The proposed ground of appeal asserts a different total effective sentence and a different non-parole period to those we have tabulated. Before us the parties were agreed that the sentences are as we have set them out. The applicant seeks to contend that the sentence of 1 year’s imprisonment on charge 1, 4 years on charge 2, 3 months on the summary charge, the total effective sentence of 4 years 6 months, and the non-parole period of 3 years, are each manifestly excessive.

Circumstances of the offending

The conduct constituting charge 1 (trafficking…

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 Ellis v The Queen

Details

AGLC: Ellis v The Queen [2018] VSCA 221
Case: [2018] VSCA 221
Decision Date: 31 August 2018

CaseChat Overview and Summary

In the matter of Ellis versus The Queen, the appellant sought leave to appeal against the sentence imposed following his conviction for trafficking in a commercial quantity of a drug of dependence. The quantity involved was 3.5 kilograms of 1,4-butanediol, and the case was heard in the Court of Appeal of Victoria. The appellant argued that the sentence imposed was manifestly excessive, and this argument was the primary legal issue the court needed to address.

The legal issue revolved around whether the sentence of imprisonment, considering the appellant's criminal history, the nature of the offence, and the circumstances surrounding it, constituted a manifest excess. A secondary issue was the relevance of the potential profitability of the drug of dependence in determining the appropriate sentence. The appellant's legal team contended that the sentence did not adequately reflect the proportionality principle, especially given the potential profitability of the drug. They referred to the case of DPP v Maxwell as a precedent to support their argument.

The Court of Appeal, in considering the application, carefully weighed the arguments presented and the principles of sentencing. The Court found that the sentence was proportionate to the gravity of the offence and the appellant's criminal history. The Court also held that the potential profitability of the drug was not a determinative factor in assessing the sentence. The Court referenced the precedent set in DPP v Maxwell and determined that the appellant's sentence did not constitute a manifest excess. Therefore, the application for leave to appeal was refused.

Orders