[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Appellant and of certain other persons.

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JUDGES:	MAXWELL P, REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 November 2016
DATE OF JUDGMENT:	23 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 151
JUDGMENT APPEALED FROM:	DPP v [Gregory] (Unreported, County Court of Victoria, Judge Bourke, 13 October 2015)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in commercial quantity of methamphetamine – Sentence 8y 6m – Whether manifestly excessive – Plea of guilty – Offender operated trafficking syndicate for profit – Business conducted over eight months – Quantity trafficked approached threshold for large commercial quantity – Violent enforcement methods – Whether trafficking offence aggravated by operational violence – Whether double punishment on separate offences of violence – Post-traumatic stress disorder – Delay – Sentence within range – Use of comparable cases – Appeal dismissed – Drugs, Poisons and Controlled Substances Act 1981 s 71AA.

CRIMINAL LAW – Sentencing – Trafficking in drug of dependence – Trafficking in commercial quantity (CQ) – Current sentencing practice – Whether sentencing practice reflects objective seriousness of offending – Quantity-based sentencing regime – Whether sentencing for upper range of CQ trafficking offences adequate – Sentences clustered under 10y – Need for sentencing practice to change – Exercise of discretion not to visit offender with uplift of current sentencing practice – Nam Son Nguyen v The Queen (2016) 311 FLR 289 considered – Drugs, Poisons and Controlled Substances Act 1981 s 71AA – Ashdown v The Queen (2011) 37 VR 341 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Dann QC	Tricarico & Marcevski Lawyers
For the Respondent	Mr B Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
BEACH JA:

Summary

For a period of eight months in 2013, the appellant (‘BG’) ran a drug trafficking business in regional Victoria. The drugs — principally methylamphetamine (‘ice’) — were brought to regional Victoria by van from New South Wales. BG supplied the drugs to a network of dealers who on-sold them. He used intimidation, fear and violence to enforce payment of the debts which the dealers incurred.

The appellant ultimately pleaded guilty to four trafficking charges, four charges involving violence and one charge each of theft and blackmail. Of the 10 charges, the most serious was that of trafficking in a commercial quantity of methylamphetamine between 17 May 2013 and 21 January 2014 (‘the CQ trafficking charge’). On that charge, BG was sentenced to eight years and six months’ imprisonment. As appears from the sentencing table below,[2] the total effective sentence was nine years and five months’ imprisonment. A non-parole period of six years’ imprisonment was fixed.
[2]See [22] below.

BG was granted leave to appeal on the ground…

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 Gregory (a pseudonym) v The Queen

Details

AGLC: Gregory (a pseudonym) v The Queen [2017] VSCA 151
Case: [2017] VSCA 151
Decision Date: 23 June 2017

CaseChat Overview and Summary

The appeal in Gregory v The Queen involved the sentencing of an individual, referred to pseudonymously as Gregory, who pleaded guilty to trafficking in a commercial quantity of methamphetamine. The Court of Appeal was tasked with determining whether the sentence imposed by the lower court was manifestly excessive. The original sentence was eight years and six months imprisonment. The dispute centred on whether this sentence appropriately reflected the gravity of Gregory's criminal activities, which included operating a trafficking syndicate over an eight-month period, with the quantity of drugs trafficked approaching the threshold for large commercial quantities. Additionally, the court had to consider whether the use of violent enforcement methods aggravated the trafficking offence, and whether Gregory was being doubly punished for separate violent offences.

The central legal issues addressed by the court were the appropriateness of the sentence in light of the offender's conduct and the current sentencing practices for trafficking in commercial quantities of drugs. The court examined whether the existing sentencing practices adequately reflected the objective seriousness of such offences and whether the sentence imposed was within the acceptable range. Furthermore, the court deliberated on whether the exercise of discretion to impose a lower sentence was justified under the prevailing sentencing regime. The court also considered whether the current sentencing practices needed to be revised to ensure they appropriately address the severity of upper range trafficking offences.

In its reasoning, the Court of Appeal concluded that the sentence imposed was within the appropriate range for such offences, taking into account the extensive duration and the near-threshold quantity of drugs trafficked. The court emphasised the need for consistency in sentencing and highlighted that sentences for similar offences were typically clustered under the ten-year mark. The court rejected the argument that the sentence was manifestly excessive, noting that it fell within the expected range for cases involving large commercial quantities of drugs. Additionally, the court considered the use of comparable cases and existing sentencing principles, including those outlined in Nam Son Nguyen v The Queen and Ashdown v The Queen, to support its decision. Consequently, the appeal was dismissed, affirming the original sentence as appropriate and within the bounds of current sentencing practices.

Orders