Glen McKinnell v The Queen - [2014] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0186

GLEN McKINNELL	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 February 2014
DATE OF JUDGMENT	21 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 39
JUDGMENT APPEALED FROM	DPP v McKinnell (Unreported, County Court of Victoria, Judge Smallwood, 24 May 2013)

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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of trafficking a large commercial quantity of methylamphetamine – Applicant sentenced to nine years, nine months imprisonment with a non-parole period of six years and three months – Co-offender sentenced to a total of three years and two months imprisonment with a non-parole period of one year and nine months – Significant assistance to law enforcement agencies – Parity principle – No justified sense of grievance – Application refused – No point of principle.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr T Kassimatis	Theo Magazis & Associates
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

For the reasons given by Bongiorno JA, I would also refuse leave to appeal.

BONGIORNO JA:

The applicant and a co-offender, James Chance, each pleaded guilty to one charge of trafficking in a large commercial quantity of methylamphetamine contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981. This offence carries a maximum sentence of life imprisonment. For his part the applicant received a sentence of nine years, nine months imprisonment. He also pleaded guilty to a charge of handling stolen goods for which he received six months imprisonment with total concurrency. The sentencing judge fixed a non-parole period of six years and three months imprisonment.

The applicant’s co-offender received a sentence of three years’ imprisonment on the major trafficking charge and a number of shorter sentences of imprisonment on other less serious trafficking and possession of drugs charges as well as a firearms offence and a proceeds of crime offence. His actual sentences were in accordance with the following table:

Charge on Indictment Offence Maximum Sentence Cumulation

1. Trafficking in a Drug of Dependence namely Methylamphetamine — Large Commercial Quantity
[S 71 Drugs, Poisons and Controlled Substances Act
(D,P & CSA) 1981] Life imprisonment [S 71
D, P & CSA 1981] 3 years’ imprisonment Base

2. Traffick Drug of Dependence
[S 71AC
D, P & CSA 1981] 15 years’ imprisonment [S 71AC D,P & CSA 1981] 3 months’ imprisonment 1 month

Charge on Indictment Offence Maximum Sentence Cumulation

3. Traffick Drug of Dependence
[S 71AC
D, P & CSA 1981] 15 years’ imprisonment [S 71AC
D, P & CSA 1981] 3 months’ imprisonment Nil

4. Cultivate Narcotic Plant
[S 72B
D, P & CSA 1981] 15 years’ imprisonment [S 72B (b)
D, P & CSA 1981] 3 months’ imprisonment 1 month

5. Possess Unregistered Long Arm 7 days’ imprisonment Nil

6. Possession of a Drug of Dependence
[S 73(1)

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 Glen McKinnell v The Queen

Details

AGLC: McKinnell v The Queen [2014] VSCA 39
Case: [2014] VSCA 39
Decision Date: 21 March 2014

CaseChat Overview and Summary

The applicant, Glen McKinnell, sought leave to appeal against his sentence for trafficking a large commercial quantity of methylamphetamine, contending that it was manifestly excessive. The appeal was heard in the High Court of Australia. McKinnell had been sentenced to nine years and nine months imprisonment, with a non-parole period of six years and three months. His co-offender, who provided significant assistance to law enforcement, was sentenced to a much lesser term of three years and two months imprisonment, with a non-parole period of one year and nine months.

The central legal issue before the court was whether the disparity in sentencing between McKinnell and his co-offender warranted an appeal on the basis that it contravened the parity principle or created an unjustifiable sense of grievance. The court examined whether the sentencing judge had appropriately taken into account the mitigating factors of McKinnell’s cooperation with authorities and the principles of proportionality and deterrence.

The High Court found that the sentencing judge had adequately considered all relevant factors, including the nature and circumstances of the offence, the role of each participant, and the principle of parity. The court held that the sentence imposed was proportionate to the gravity of the offence and that there was no justified sense of grievance. The significant assistance provided by the co-offender was appropriately rewarded with a lesser sentence. Consequently, the application for leave to appeal was refused, as it did not present a point of principle of general legal significance.

The court ordered that the applicant's application for leave to appeal be dismissed. The sentence imposed by the sentencing court remained unchanged.

Orders