Harrington v The Queen - [2010] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 0876 of 2008

TRAVIS HARRINGTON	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 September 2010
DATE OF JUDGMENT	23 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 249
JUDGMENT APPEALED FROM	R v Harrington (Unreported, County Court of Victoria, 27 October 2008, Judge Barnett)

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CRIMINAL LAW – Appeal against sentence – Drug trafficking offences (MDMA, cocaine and methylamphetamine) – Total effective sentence of seven years and ten months’ imprisonment with a non-parole period of five years and six months – Whether sufficient weight given to principle of parity – Appeal allowed – Appellant re-sentenced to six years and six months’ imprisonment with a non-parole period of four years and six months.

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Appearances:

Counsel

Solicitors

For the Appellant

Mr O P Holdenson QC

Tony Hargreaves & Partners

For the Crown

Mr B L Sonnet

Mr C Hyland, Solicitor for

Public Prosecutions

NEAVE JA
WEINBERG JA
T FORREST AJA:

The appellant conducted a drug trafficking business between December 2006 and April 2007. He bought and sold MDMA (ecstasy), cocaine and methylamphetamine. He possessed a cocaine press with his co-accused, Anastasios Papadopoulos. The appellant’s activities were disclosed following a police investigation into Papadopoulos. So too, were the activities of 13 other young people, all of whom have been dealt with by the courts. In broad terms, this group bought and sold large quantities of drugs amongst themselves and to the wider public, including at times to an undercover police operative. The investigation took place over five months.

Papadopoulos was the most active of all the appellant’s co-accused. Between December 2006 and April 2007 he sold MDMA, cocaine and methylamphetamine. He also traded in various types of steroids and, as we have indicated, jointly possessed the cocaine press. Papadopoulos pleaded guilty before his Honour Judge Barnett to nine offences. The appellant also pleaded guilty before his Honour. Unlike Papadopoulos he pleaded guilty to only four offences. All four of these offences can be readily compared to corresponding counts in the Papadopoulos sentence. The table below sets out the offences, very short details of them and the sentence imposed.

Papadopoulos

Harrington

Count

Offence

Sentence

Details

Count

Offence

Sentence

Details

1

Traffick large commercial quantity MDMA

8 years

18,715 tablets trafficked over 5 months

1

Traffick large commercial quantity MDMA

6 years 6 months

8,340 tablets trafficked over 5 months

2

Traffick commercial quantity cocaine

4 years; 6 months cumulative

879 grams trafficked over 5 months

2

Traffick cocaine

2 years; 1 year cumulative on count 1

415 grams trafficked over 5 months

3

Traffick amphetamines

18 months; 1 month cumulative

931 grams trafficked over 5 months

3

Traffick methylamphetamine

4 months; 2 months cumulative

112 grams trafficked over 5 months.

4

Traffick testosterone

18 months

13,344 mls

5

Traffick nandrolone

18 months

54 mls

6

Traffick stanozol

18 months

15 mls

7

Traffick mesterolone

18 months; 1 month cumulative

13…

Papadopoulos	Harrington
1	Traffick large commercial quantity MDMA	8 years	18,715 tablets trafficked over 5 months	1	Traffick large commercial quantity MDMA	6 years 6 months	8,340 tablets trafficked over 5 months
2	Traffick commercial quantity cocaine	4 years; 6 months cumulative	879 grams trafficked over 5 months	2	Traffick cocaine	2 years; 1 year cumulative on count 1	415 grams trafficked over 5 months
3	Traffick amphetamines	18 months; 1 month cumulative	931 grams trafficked over 5 months	3	Traffick methylamphetamine	4 months; 2 months cumulative	112 grams trafficked over 5 months.
4	Traffick testosterone	18 months	13,344 mls
5	Traffick nandrolone	18 months	54 mls
6	Traffick stanozol	18 months	15 mls
7	Traffick mesterolone	18 months; 1 month cumulative	13…

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 Harrington v The Queen

Details

AGLC: Harrington v The Queen [2010] VSCA 249
Case: [2010] VSCA 249
Decision Date: 23 September 2010

CaseChat Overview and Summary

Harrington appealed against his sentence following his conviction for multiple drug trafficking offences, including trafficking MDMA, cocaine, and methylamphetamine. The trial judge imposed a total effective sentence of seven years and ten months' imprisonment with a non-parole period of five years and six months. The central issue before the court was whether the trial judge adequately considered the principle of parity when imposing the sentence, which requires sentences for similar offences to be proportionate and consistent, unless there are substantial and compelling circumstances to justify a departure.

The court found that the trial judge did not sufficiently weigh the principle of parity against the need for the sentence to reflect the seriousness of the offences and the need for general deterrence. The court was concerned that the sentence did not reflect a consistent approach to similar drug trafficking cases, which could lead to perceptions of inconsistency and unfairness in the criminal justice system. The appellate court held that the principle of parity should have been given more significant weight, especially considering the lack of substantial and compelling circumstances to justify a departure from parity.

As a result, the appeal was allowed, and Harrington was re-sentenced to six years and six months' imprisonment with a non-parole period of four years and six months. This new sentence more accurately reflected the principle of parity and the need to maintain consistency in sentencing for similar offences. The court emphasised the importance of ensuring that sentences are proportionate and reflect the gravity of the offences, while also considering the broader principles of criminal justice.

Orders