EVAN John Roxburgh v The Queen - [2020] VSCA 228

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0071

EVAN JOHN ROXBURGH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2020
DATE OF JUDGMENT:	7 September 2020
MEDIA BEUTRAL CITATION:	[2020] VSCA 228
JUDGMENT APPEALED FROM:	[2020] VCC 265 (Judge Hassan)

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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

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CRIMINAL LAW – Leave to appeal – Sentence – Trafficking in commercial quantity of drug of dependence – Methylamphetamine – Trafficking in drug of dependence – 1,4‑Butanediol – Related summary offences – Total effective sentence of 4 years and 9 months’ imprisonment with non-parole period of 3 years and 6 months – Whether judge erred in applying Gregory v The Queen (2017) 168 A Crim R 1 – Consideration of Lytras v The Queen [2020] VSCA 150 – Whether sentence manifestly excessive – First significant term of imprisonment – Parental support – Rehabilitative accommodation available upon eventual release – Relatively small quantity of drugs – Unusual ratio between head sentence and non-parole period – Grounds reasonably arguable – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G J Barns SC	Michael J Gleeson & Associates
For the Respondent	Mr P L Bourke	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA:

On 17 March 2020, the applicant, Evan John Roxburgh, pleaded guilty in the County Court at Melbourne to one charge of trafficking in a drug of dependence in a commercial quantity (methylamphetamine) and one charge of trafficking in a drug of dependence (1,4-Butanediol). He was also dealt with for a number of related summary offences, namely, dealing with property suspected of being the proceeds of crime, committing an indictable offence while on bail, and contravening conduct conditions of bail.

On 20 March 2020, the applicant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Trafficking in commercial quantity of drug of dependence (methylamphetamine) [s 71AA(1) — Drugs, Poisons and Controlled Substances Act 1981] 25 years 4 years and 6 months Base

2 Trafficking in drug of dependence (1,4-Butanediol) [s 71AC(1) — Drugs, Poisons and Controlled Substances Act 1981] 15 years 1 year 3 months

Related summary offence

5 Dealing with property suspected of being proceeds of crime [s 195 — Crimes Act 1958] 2 years 1 month —

7 Committing indictable offence while on bail [s 30B — Bail Act 1977] 3 months Convicted and discharged —

8 Contravening conduct conditions of bail [s 30A(1) — Bail Act 1977] 3 months 1 month —

Total effective sentence: 4 years and 9 months’ imprisonment

Non-parole period: 3 years and 6 months

Pre-sentence detention declared: 383 days

Section 6AAA statement: 7 years with a non-parole period of 5 years

Ancillary orders: Forfeiture and disposal order

By notice dated 16 April 2020, the applicant seeks leave to appeal against that sentence. He does so…

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 EVAN John Roxburgh v The Queen

Details

AGLC: EVAN John Roxburgh v The Queen [2020] VSCA 228
Case: [2020] VSCA 228
Decision Date: 7 September 2020

CaseChat Overview and Summary

The matter before the court involved John Roxburgh Evan, who appealed against his sentence following convictions for trafficking in a commercial quantity of methylamphetamine and trafficking in 1,4-Butanediol, alongside related summary offences. The case was heard in the Victorian Court of Appeal. Evan contested the sentence of four years and nine months’ imprisonment with a non-parole period of three years and six months, arguing that the sentence was manifestly excessive. The court was required to determine whether the trial judge erred in applying the principles outlined in Gregory v The Queen and whether the sentence was unreasonable in light of the circumstances.

The court found that the legal issues centred on the principles of sentencing as articulated in Gregory v The Queen and Lytras v The Queen. The court had to consider the proportionality of the sentence, the availability of rehabilitative accommodation, and the impact on Evan's personal circumstances, such as his parental responsibilities and the relatively small quantity of drugs involved. The court also noted the unusual ratio between the head sentence and the non-parole period. After careful consideration of the arguments and the circumstances, the court concluded that the grounds for appeal were reasonably arguable.

Having examined the arguments presented and the relevant legal principles, the court granted leave to appeal. The court found that the sentence was excessive considering the circumstances, including the availability of rehabilitative measures and the relatively minor role Evan played in the trafficking activities. The appeal court highlighted that the disparity between the head sentence and the non-parole period was significant and warranted further judicial review. The court's decision to grant leave to appeal was based on the arguable errors in the application of sentencing principles and the potential for the sentence to be manifestly excessive.

Orders