Harris v The Queen - [2016] VSCA 30

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0189

JED HARRIS (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	BONGIORNO and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2016
DATE OF JUDGMENT:	4 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 30
JUDGMENT APPEALED FROM:	DPP (Cth) v [Harris] (Unreported, County Court of Victoria, Judge McInerney, 25 August 2015)

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CRIMINAL LAW – Sentence – Appeal – Importing a marketable quantity of a border controlled drug – Sentence of 5 years’ imprisonment with non-parole period of 3 years – Whether sentencing judge erred in selecting weight of drug as the chief factor to be taken into account – Whether sentencing judge erred in failing to have regard to where in the spectrum of marketable quantity the border controlled drug imported fell – Whether sentence manifestly excessive – Appeal allowed – Appellant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C T Carr	Leanne Warren & Associates
For the Respondent	Ms K Breckweg	Commonwealth Director of Public Prosecutions

BONGIORNO JA
BEACH JA:

Introduction

On 31 July 2015, the appellant pleaded guilty in the County Court to one charge of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code 1995 (Cth). The maximum term of imprisonment for this offence is 25 years. On 25 August 2015, the appellant was sentenced to a term of imprisonment of five years with a non-parole period of three years.

On 16 December 2015, Beach JA granted the appellant leave to appeal against his sentence on the following grounds:

1.The sentencing judge erred in sentencing the appellant on the basis that he was engaged in ‘quantity based sentencing’.
2.The sentencing judge erred in failing to have regard to where the quantum in this case fell within the spectrum of a marketable quantity of [a border controlled drug].

3. The sentence imposed is manifestly excessive.

Circumstances of the offending

The appellant is a foreign national who was 24 years of age at the time of his offending. In February 2015, he arrived at Melbourne Airport on an international flight. He was selected by customs officers for examination. During the course of being examined and questioned, the appellant made admissions concerning concealed packages of a border controlled drug (‘the drug’) in his underwear. Further examination disclosed that the appellant was carrying the drug in his underwear and rectum. The total imported was 120 grams. The appellant was interviewed by police and made full admissions. He provided additional information and offered to assist police. As it turned out, the information the appellant was able to provide was already known to police.

On the plea hearing, the wholesale value of the drug was said to be approximately $60,000, and the street value was said to be approximately $140,000. An explanation for the appellant’s offending was that, in the…

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 Harris v The Queen

Details

AGLC: Harris v The Queen [2016] VSCA 30
Case: [2016] VSCA 30
Decision Date: 4 March 2016

CaseChat Overview and Summary

The appellant, Harris, was convicted of importing a marketable quantity of a border controlled drug. The case came before the court on an appeal against sentence, where the appellant challenged the severity of the 5-year imprisonment term with a non-parole period of 3 years. The central issue before the court was whether the sentencing judge erred in focusing on the weight of the drug as the predominant factor and whether the sentencing judge failed to consider where the drug fell within the spectrum of a marketable quantity. Additionally, the court needed to determine if the sentence was manifestly excessive.

The court found that the sentencing judge erred in primarily considering the weight of the drug without adequately assessing its position within the marketable quantity spectrum. The judge also failed to sufficiently consider the appellant's personal circumstances and mitigating factors. The court concluded that the sentence was manifestly excessive, given the totality of the circumstances. The appeal was allowed, and the appellant was resentenced to a term of 2 years and 6 months’ imprisonment with a non-parole period of 1 year and 3 months. The court emphasised the need for a balanced approach in sentencing, taking into account all relevant factors and the overall context of the offence.

Orders