CRIMINAL LAW – Sentence – Trafficking in methylamphetamine (‘ice’) – Sentence of two years’ imprisonment – Whether sentencing judge took into account well-known harmful consequences of ice – Harmful qualities of drug not a relevant sentencing consideration – Matter for legislature whether harmful consequences of ice should be addressed – Sentencing error established – Whether applicant’s psychological condition given insufficient weight – Sentence not manifestly excessive – No different sentence should be imposed – Appeal dismissed – R v Pidoto (2006) 14 VR 269; Adams v The Queen (2008) 234 CLR 143 applied.
CRIMINAL LAW – Sentence – Trafficking in methylamphetamine – Prevalence of offence – Common knowledge as to increased prevalence of offence – General deterrence to be given greater emphasis by gradual increase in sentences – R v Downie and Dandy [1998] 2 VR 517; Ashdown v The Queen (2011) 37 VR 341 applied.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr D Gurvich QC with Mr S Grant
Ellinghaus & Lindner
For the Respondent
Mr J Champion SC, DPP with Mr C Carr
Mr J Cain, Solicitor for Public Prosecutions
REDLICH JA PRIEST JA BEACH JA:
Introduction
On 10 March 2015, the applicant pleaded guilty in the County Court to two charges of trafficking a drug of dependence,[1] the drugs being methylamphetamine (charge 1) and cannabis (charge 2). He also pleaded guilty to a charge of obtaining property by deception[2] (charge 3), and to two summary charges of dealing with property suspected of being the proceeds of crime[3] and possessing a prohibited weapon.[4]
[2]Crimes Act 1958 s 81(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958 s 195. The maximum penalty is two years’ imprisonment.
[4]Control of Weapons Act 1990 s 5AA. The maximum penalty is two years’ imprisonment (or a fine of 240 penalty units).
Charge 1, trafficking in methylamphetamine — which is commonly and colloquially called ‘ice’ — related to a period between 18 September 2013 and 18 March 2014;[5] and charge 2, trafficking in cannabis, related to a single day, 19 November 2013. The charge of obtaining property by deception, charge 3, was committed on 6 December 2013. Summary charge 6, dealing in property suspected of being the proceeds of a crime, relates to two laptop computers and six iPads found in the applicant’s possession on 18 March 2014; and summary charge 7, possessing a prohibited weapon, relates to an extendable baton and a set of nunchacku, found in his possession on the same date.
[5]Charge 1 was a ‘Giretti’ count: R v Giretti (1986) 24…
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
Haddara v The Queen [2016] VSCA 168
Case
[2016] VSCA 168
Decision Date
CaseChat Overview and Summary
In the case of Haddara v The Queen, the applicant, Haddara, appealed against his sentence for trafficking in methylamphetamine, commonly referred to as "ice." The case was heard by the Court of Appeal, which considered whether the primary judge had adequately taken into account the harmful consequences of ice in sentencing and whether his psychological condition was given sufficient weight. The appeal was ultimately dismissed.
The primary legal issues for the court to decide were whether the sentencing judge had failed to adequately consider the well-known harmful consequences of the drug ice and whether the applicant's psychological condition had been given insufficient weight in determining the sentence. The court also needed to consider whether the sentence was manifestly excessive and if it should be altered.
The court held that while the harmful consequences of ice are widely known, they are not a relevant consideration for sentencing, as it is for the legislature to address such matters. The court noted that the sentence was not manifestly excessive and that the applicant's psychological condition, although a relevant consideration, did not warrant a different sentence. The court further held that general deterrence should be given greater emphasis by gradually increasing sentences for this type of offence. The appeal was dismissed, and the original sentence of two years’ imprisonment was upheld.
The final orders of the court were to dismiss the applicant's appeal and to affirm the original sentence. The court found that no error in the primary judge's sentencing process warranted a different sentence. The court also noted the importance of general deterrence in the sentencing of drug trafficking offences.