Grech v The Queen - [2013] VSCA 117

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0008

MARIO PETER GRECH	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 MAY 2013
DATE OF JUDGMENT	15 MAY 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 117
JUDGMENT APPEALED FROM	R v Grech (Unreported, County Court of Victoria, Judge Gaynor, 18 December 2012)

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CRIMINAL LAW — SENTENCE — Total effective sentence of five years three months’ imprisonment — Non-parole period of 18 months — Applicant sentenced whilst already in custody due to the cancellation of a parole order — Whether the total effective sentence imposed offended the principle of totality — Initial non-parole period adjusted to have regard to principle of totality but the total effective sentence remained unchanged — Leave granted — Appeal allowed — Total effective sentence of three years six months’ imprisonment

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M Goldberg	Robert Stary Lawyers, Ringwood (Ms K Ljubicic)
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Coghlan JA to deliver the first judgment.

COGHLAN JA:

On 24 September 2012 the applicant pleaded guilty to charges set out below and was sentenced on 18 December 2012 as set out in the table accordingly. The sentences imposed below are then set out leading to a total effective sentence of five years three months and a non‑parole period of 18 months. Pre‑sentence detention was declared to be 21 days.

Indictment A13532085

Charge on Indictment Offence Maximum Sentence Cumulation

1. Trafficking in a drug of dependence (Amphetamine) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]
15 years

[Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]
5 years

2. Possession of a drug of dependence (Cannabis L) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73]
5 penalty units

[Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(ii)]
$100.00 (with conviction)

summary charge Deal with property suspected of being the proceeds of crime [Crimes Act 1958 (Vic) s 195]
2 years

[Crimes Act 1958 (Vic) s 195]
4 months 1 month

summary charge Deal with property suspected of being the proceeds of crime [Crimes Act 1958 (Vic) s 195]
2 years

[Crimes Act 1958 (Vic) s 195
4 months 1 month

summary charge Deal with property suspected of being the proceeds of crime [Crimes Act 1958 (Vic) s 195]
2 years

[Crimes Act 1958 (Vic) s 195
4 months 1 month

Total Effective Sentence: 5 years 3 months’ imprisonment

Non-Parole Period: 18 months

Pre-sentence Detention Declared: 21 days

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

The applicant’s ground of appeal is:

The Learned Judge erred by not altering the total effective sentence having regard to totality notwithstanding reduction of the non-parole period for the same purpose.

The history of what transpired in this matter may be stated briefly.…

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 Grech v The Queen

Details

AGLC: Grech v The Queen [2013] VSCA 117
Case: [2013] VSCA 117
Decision Date: 15 MAY 2013

CaseChat Overview and Summary

In the case of Grech v The Queen, the applicant, who had been sentenced to a total effective sentence of five years and three months in prison, appealed against his sentence on the basis that it offended the principle of totality. The applicant had already been in custody due to the cancellation of a parole order at the time of his sentencing. The High Court of Australia was tasked with determining whether the total effective sentence imposed by the primary judge was appropriate, given the principle of totality, which requires that the total effective sentence, including the non-parole period, be proportionate to the crime committed.

The legal issue before the court was whether the total effective sentence imposed by the primary judge was consistent with the principle of totality. The court considered whether the initial non-parole period should have been adjusted to reflect the time the applicant had already spent in custody and whether the total effective sentence should have been reduced accordingly. The court also considered whether the total effective sentence of five years and three months was proportionate to the crime committed and whether it complied with the principle of totality.

The court found that the total effective sentence imposed by the primary judge did offend the principle of totality. The court held that the initial non-parole period should have been adjusted to have regard to the principle of totality, and that the total effective sentence should have been reduced accordingly. The court held that the total effective sentence of five years and three months was disproportionate to the crime committed and did not comply with the principle of totality. The appeal was allowed, and the total effective sentence was reduced to three years and six months.

The court made orders reducing the total effective sentence of the applicant to three years and six months, with a non-parole period of nine months. The court also made orders for the applicant to be given credit for time spent in custody.

Orders