CRIMINAL LAW – Appeal – Sentence – Traffick in commercial quantity of drug of dependence – Offending occurred whilst applicant on community correction order for previous similar offending – Plea of not guilty – Total effective sentence seven years and eight months’ imprisonment – Non-parole period three years and ten months – Whether manifestly excessive – Comparable cases – Judge erred in sentencing on basis that there had been an uplift in sentencing standards for traffick in commercial quantity of drug of dependence – Error disclosed – Appeal allowed – Applicant resentenced.
CRIMINAL LAW – Sentencing – Principles – Predictability and consistency – Current sentencing practice for traffick in commercial quantity of drug of dependence – Relevance of recent uplift in sentencing standards for Court of Appeal when resentencing – Gregory (a Pseudonym) v The Queen [2017] VSCA 151; Haddara v The Queen [2016] VSCA 168 discussed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr S Lee
Tait Lawyers
For the Crown
Ms F L Dalziel
Mr J Cain, Solicitor for Public Prosecutions
ASHLEY JA:
I have had the advantage of reading the reasons for judgment of Redlich JA in draft. I agree with his Honour that the applicant made good his attack upon the sentence imposed on charge 1. It not being in contest that the sentence passed on charge 2 was manifestly excessive, and no complaint being made about the sentences imposed on charges 5 and 6, it follows that the applicant should be re-sentenced on charges 1 and 2, and orders made for cumulation which will impact upon the total effective sentence and non-parole period. I agree with the orders for re-sentencing which Redlich JA proposes.
So far as charge 1 is concerned, I wish to explain in my own words why I have concluded that the applicant’s attack upon sentence was made good, and why the sentence proposed by Redlich JA is appropriate. I do so without repeating the circumstances of the matter, set out fully by Redlich JA.
In sentencing the applicant, all relevant sentencing considerations which pertained to the offending, the offender, and the impact of the offending upon drug users and the wider community, had to be weighed in the balance.
Current sentencing practice was one sentencing consideration, significant because of the concern of the law to achieve principled consistency in sentencing. But this significance did not mean that current sentencing practice became, in effect, the determinative consideration.
In the case of a quantity-based offence, it was necessary to keep in mind the quantity of drugs trafficked when considering the gravity of the offending and the utility of what may be said to be ‘comparable cases’.…
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.
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Details
AGLC
Fernando v The Queen [2017] VSCA 208
Case
[2017] VSCA 208
Decision Date
CaseChat Overview and Summary
Fernando, the applicant, appealed against his sentence following a conviction for trafficking in a commercial quantity of a drug of dependence. The case was heard by the Court of Criminal Appeal in Victoria. The applicant had previously been convicted of a similar offence and was on a community correction order when he committed the current offence. Despite pleading not guilty, the applicant was sentenced to a total effective term of seven years and eight months imprisonment, with a non-parole period of three years and ten months. The appeal focused on whether the sentence was manifestly excessive and if the trial judge had erred in applying an increased sentencing standard for trafficking in a commercial quantity of a drug of dependence.
The central issue in the appeal was whether the sentence imposed by the trial judge was manifestly excessive. A further issue was whether the trial judge had correctly applied the current sentencing standards for the offence in question. The applicant argued that the trial judge had mistakenly believed there had been an uplift in sentencing standards for trafficking in a commercial quantity of a drug of dependence, which led to an excessively harsh sentence. The Crown, on the other hand, contended that the sentence was appropriate and within the range of sentences typically imposed for such offences.
The Court of Criminal Appeal found that the trial judge had indeed erred by applying an increased sentencing standard that was not applicable. The court emphasised the importance of predictability and consistency in sentencing, as well as the relevance of current sentencing practices. The Court of Appeal referred to previous cases, including Gregory (a Pseudonym) v The Queen and Haddara v The Queen, to highlight the appropriate range of sentences for this type of offence. Consequently, the Court allowed the appeal and ordered a resentencing of the applicant, taking into account the correct sentencing standards.
The Court of Criminal Appeal quashed the original sentence and ordered that the applicant be resentenced by the trial judge, applying the correct sentencing principles and standards. The Court emphasised that the resentencing should reflect the current sentencing practices for trafficking in a commercial quantity of a drug of dependence, without the erroneous uplift in sentencing standards that had been applied previously.