SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0088
| SARAH ELLIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| 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) |
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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.
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| 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
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…
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- AGLC
- Ellis v The Queen [2018] VSCA 221
- Case
- [2018] VSCA 221
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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