John Waters v The Queen - [2013] VSCA 86

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0248

JOHN WATERS	Applicant
v
THE QUEEN	Respondent

JUDGES:	REDLICH and WHELAN JJA, KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 March 2013
DATE OF JUDGMENT:	18 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 86
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Waters (Unreported, County Court of Victoria, Judge Hampel, 11 October 2012)

CRIMINAL LAW – Application for leave to appeal against sentence – Initially arraigned on numerous drug charges – Plea of guilty to some offences and found guilty at trial of another – Sentenced to imprisonment – Earlier appeal against conviction and sentence allowed – Charge upon which convicted at trial remitted for re-trial – Plea of guilty to charge of trafficking in a commercial quantity of a drug of dependence – Sentence of 5 years’ 4 months’ imprisonment, 3 years to be served cumulatively on sentence previously imposed – Total effective sentence of 11 years 6 months with a new single non-parole period of 7 years 9 months – Whether order for cumulation and new single non-parole period manifestly excessive – Leave refused.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Holt SC with Ms Z Broughton	C Marshall & Associates
For the Crown	Mr P J Doyle	Mr C Hyland Solicitor for Public Prosecutions

REDLICH JA:

For the reasons given by Whelan JA I agree that the application for leave to appeal against sentence should be refused. I would only add the following.

The sentencing judge was faced with a difficult sentencing task. In very careful and informative reasons her Honour explained that she had significantly reduced the sentence that would otherwise have been imposed for the present offence had that been the base sentence. Because of the sentences that had already been imposed, a substantial reduction in the sentence for this offence was required in order to satisfy the principle of totality.[1] The total effective sentence now to be served had to be one that was no more than was necessary to reflect the overall criminality of the applicant.
[1]For a discussion of the rationale for the principle see Azzopardi v The Queen [2011] VSCA 372.

Giving effect to totality and allowing for the constellation of mitigating factors that were present, the sentence fixed and the new non-parole period clearly fell within a sound exercise of the sentencing discretion.

WHELAN JA:

In 2009 the applicant was arraigned in the County Court on two presentments containing a number of charges of drug offences. He pleaded guilty on arraignment or during his trial to eight offences. He was found guilty by the jury of one offence. He was sentenced to terms of imprisonment. He appealed against his conviction and the sentences. On 9 December 2011 those appeals were allowed.[2] The charge upon which he had been convicted after a trial was remitted for re-trial. He was re-sentenced on the other counts to a total effective sentence of 8 years 6 months’ imprisonment with a…

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 John Waters v The Queen

Details

AGLC: John Waters v The Queen [2013] VSCA 86
Case: [2013] VSCA 86
Decision Date: 18 April 2013

CaseChat Overview and Summary

John Waters was found guilty of drug trafficking and sentenced to imprisonment. He appealed against the sentence, arguing it was excessively harsh. The High Court was tasked with determining whether the order for cumulation and the new single non-parole period were manifestly excessive.

The court examined the nature and extent of the drug trafficking, the offender’s criminal history, and the principles of sentencing proportionality. It considered the totality of the offender’s offending and the cumulative impact of the sentence, which included a new single non-parole period. The court held that the sentence was within the range of reasonable responses, taking into account the seriousness of the offence and the offender’s criminal history.

In its reasoning, the court noted that the sentence imposed was not manifestly excessive. It considered the cumulative effect of the sentences, the nature of the offence, and the offender's culpability. The court found that the sentence was proportionate to the gravity of the crime and did not unduly punish the offender. Therefore, the court refused leave to appeal.

The court’s final orders confirmed the sentence imposed by the lower court, including the order for cumulation and the new single non-parole period. The offender’s application for leave to appeal against the sentence was dismissed.

Orders