Jason Gioffre v The Queen - [2020] VSCA 177

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0097

JASON GIOFFRE	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2020
DATE OF JUDGMENT:	1 July 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 177
JUDGMENT APPEALED FROM:	[2020] VCC 473 (Judge M P Bourke)

---
ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
---

CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to one charge of trafficking a drug of dependence and one charge of possession of a drug of dependence – Whether in comparing offence to previous offence involved a factual finding not reasonably open on evidence – Where sentence disproportionate to objective gravity of offence –
Whether sentence manifestly excessive – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Poole	Giorgianni & Liang
For the Respondent	Ms R Harper	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
EMERTON JA:

Introduction

On 22 March 2019, the applicant pleaded guilty to trafficking a drug of dependence, methylamphetamine, (charge 1)[1] and to possessing a drug of dependence, cannabis (charge 2)[2]. He was sentenced in the County Court as follows:
[1]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1991.
[2]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1991.

Charges on Indictment J11344344

Offence

Maximum

Sentence

Cumulation

1 Trafficking in a drug of dependence (contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981) 15 years 4 years Base

2 Possession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981) 12 months 3 months Nil

Total Effective Sentence: 4 years’ imprisonment

Non-Parole Period: 2 years and 6 months’ imprisonment

(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 318 days

6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years

Charges on Indictment J11344344	Offence	Maximum	Sentence	Cumulation
1	Trafficking in a drug of dependence (contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981)	15 years	4 years	Base
2	Possession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981)	12 months	3 months	Nil
Total Effective Sentence:	4 years’ imprisonment
Non-Parole Period:	2 years and 6 months’ imprisonment
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:	318 days
6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years

The applicant seeks leave to appeal against the sentence on two grounds. Ground 1 asserts that the sentencing judge erred ‘in that he made a finding that was not reasonably open on the evidence’; ground 2 asserts that the sentence is manifestly excessive in that it is disproportionate to the objective gravity of the offending. Leave having been refused by a single judge of the Court, the applicant has elected to have an oral hearing of his application pursuant to s 315(2) of the Criminal Procedure Act 2009.[3]
[3]Jason Gioffre v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 19 July 2019) [31].

Circumstances of the offending

On 22 May 2018, at around 12.30 pm, the applicant left his residence at Herne Hill near Geelong in his car. Shortly afterwards he was intercepted by police, arrested and transported to the Geelong Police Station.

When the applicant was searched, police found a small black pouch. The black…

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 Jason Gioffre v The Queen

Details

AGLC: Gioffre v The Queen [2020] VSCA 177
Case: [2020] VSCA 177
Decision Date: 1 July 2020

CaseChat Overview and Summary

In the case of Jason Gioffre against The Queen, the applicant appealed against his sentence for drug trafficking and possession. The matter was heard in the High Court of Australia, where the primary issue was the proportionality of the sentence given by the lower court. Gioffre had pleaded guilty to trafficking and possessing a drug of dependence, and the court needed to determine if the sentence was proportionate to the objective seriousness of the offence. Additionally, the court had to assess whether the sentence was manifestly excessive.

The High Court considered whether the lower court's comparison of the current offence to a previous one involved a factual finding that was not reasonably open on the evidence. The court found that the comparison was not unreasonable and thus the factual finding was properly made. Furthermore, the court examined whether the sentence was disproportionate to the gravity of the offence. The court determined that the sentence was not manifestly excessive, maintaining that it was proportionate to the objective seriousness of the crime. As a result, the High Court refused leave to appeal.

The final orders of the court were that leave to appeal was refused, and the original sentence imposed by the lower court was upheld. The reasoning of the lower court in determining the sentence was considered appropriate and in line with the principles of proportionality in sentencing.

Orders