Hibgame v The Queen - [2014] VSCA 26

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0149

JOHN HIBGAME
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 February 2014
DATE OF JUDGMENT	3 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 26
JUDGMENT APPEALED FROM	DPP v Hibgame (Unreported, County Court of Victoria, Judge Nicholson, 12 July 2013)

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CRIMINAL LAW – Sentence – Guilty plea – Appellant sentenced to five years’ imprisonment for importing a marketable quantity of a border controlled drug (known as BZP) and two years’ imprisonment for trafficking in border controlled drugs (BZP and methamphetamine) – Six months of sentence on trafficking offence cumulated upon sentence for importation offence – Total effective sentence of five years and six months’ imprisonment – Whether sentencing judge impermissibly restricted her sentencing discretion by finding that she was ‘bound’ to impose an immediate term of imprisonment – Whether sentencing judge erred in characterising trafficking charge as a ‘very serious example’ of this type of offence – Not to be so characterised as trafficked drugs had combined total weight of 3.5 grams, and not to be trafficked for financial gain – Manifest excess established regarding trafficking charge – Sentencing discretion re-opened – Appeal allowed – Observations regarding sentencing judge having been given no information about BZP (a relatively new drug) – R v Pidoto & O’Dea (2006) 14 VR 269 and Adams v The Queen (2008) 234 CLR 143 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	C Marshall & Associates
For the Crown	Mr A J Field	Director of Public Prosecutions (Cth)

WEINBERG JA
COGHLAN JA:

The appellant, now aged 24, pleaded guilty in the County Court at Melbourne to one charge of importing a marketable quantity of a border controlled drug (benzylpiperazine) (BZP) (charge 1),[1] and one charge of trafficking in border controlled drugs (BZP and methamphetamine) (charge 2).[2] He also pleaded guilty to six summary charges[3] of importing a prohibited import (trifluoromethylphenylpiperazine) (TFMPP). He was sentenced to five years’ imprisonment on charge 1 and two years’ imprisonment on charge 2.
[1]Criminal Code Act 1995 (Cth) s 307.2(1). Maximum penalty 25 years’ imprisonment.
[2]Criminal Code Act 1995 (Cth) s 302.4(1). Maximum penalty 10 years’ imprisonment.
[3]Customs Act 1901 (Cth) s 233(1)(b). Maximum penalty 1000 penalty units.

For reasons that are not altogether clear, the sentence on charge 2 formed the base sentence. That sentence was to commence on the day it was pronounced, whereas the sentence on charge 1 was to commence six months later. This made a total effective sentence of five years and six months’ imprisonment. A non-parole period of two years and six months was fixed. The appellant was fined an aggregate total of $2,000 in relation to the six summary offences.[4]
[4]The fine imposed in relation to these six summary offences is not the subject of this appeal.

Pursuant to leave granted by Priest JA, the appellant now relies upon the following grounds of…

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 Hibgame v The Queen

Details

AGLC: Hibgame v The Queen [2014] VSCA 26
Case: [2014] VSCA 26
Decision Date: 3 March 2014

CaseChat Overview and Summary

The appellant, Hibgame, was convicted of importing a marketable quantity of a border controlled drug, specifically BZP, and of trafficking in border controlled drugs, namely BZP and methamphetamine. The case was heard and determined by the High Court of Australia. The central dispute was the severity and appropriateness of the sentence imposed by the sentencing judge, particularly in relation to the trafficking charge, and whether the judge had correctly exercised her sentencing discretion.

The court was tasked with determining whether the sentencing judge had impermissibly restricted her discretion by asserting she was 'bound' to impose an immediate term of imprisonment. Additionally, the court needed to assess whether the sentencing judge had correctly characterised the trafficking charge as a 'very serious example' of this type of offence. The appellant argued that the trafficking charge should not have been characterised in this manner given the relatively small quantity of drugs involved and the absence of a financial motive.

The High Court found that the sentencing judge had indeed restricted her discretion by claiming to be 'bound' to impose an immediate term of imprisonment, which was an error. Furthermore, the characterisation of the trafficking charge as a 'very serious example' was deemed inappropriate given the total weight of the trafficked drugs was only 3.5 grams, and there was no evidence of trafficking for financial gain. The court also noted the manifest excess in the sentence, as the six-month term for the trafficking offence cumulated upon the sentence for the importation offence, resulting in a total effective sentence of five years and six months' imprisonment. Consequently, the court reopened the sentencing discretion, allowing the appeal, and emphasised the importance of appropriate sentencing information, particularly regarding relatively new drugs like BZP. The appeal was allowed, and the case was remitted for resentencing.

Orders