SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0132
| DAMIEN JOHNSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 11 February 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 9 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1284 (Judge Tinney) |
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CRIMINAL LAW – Leave to appeal – Sentence – One charge of trafficking drug of dependence in commercial quantity – Related summary offence – Whether judge erred in failing to sentence applicant as a courier – Whether sentence manifestly excessive – Leave to appeal refused.
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| Written submissions: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Sarah Pratt & Associates |
| For the Respondent | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA:
On 1 September 2021, the applicant pleaded guilty before a judge of the County Court to one charge of trafficking in a drug of dependence in a commercial quantity,[1] and one related summary charge of dealing with property suspected of being proceeds of crime.[2]
[1]Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71AA.
[2]Crimes Act 1958 s 195.
On 3 September 2021, the judge sentenced him as follows:
| Charge on indictment M10390799 | Offence | Maximum | Sentence | Cumulation |
| 1 | Trafficking in a drug of dependence in a commercial quantity | 25 years’ imprisonment | 5 years and | Base |
| Related summary offence | ||||
| Charge 4 | Dealing with property suspected of being proceeds of crime | 2 years’ imprisonment | 2 months’ imprisonment | - |
| Total effective sentence | 5 years and 6 months’ imprisonment | |||
| Non-parole period | 3 years and 6 months | |||
| Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991 | 192 days | |||
| 6AAA statement | 8 years’ imprisonment with a non-parole period of | |||
| Other relevant orders | Forfeiture and disposal orders | |||
The applicant now applies for leave to appeal on two proposed grounds. The first is that the judge erred by failing to sentence the applicant on the basis that the applicant was a courier. Secondly, it is said that the sentence imposed on the primary charge was manifestly excessive.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of offending
At the time of the offending, the applicant was 55 years old. He owned and operated an interstate express freight transport company.
On 23 February 2021, near East Wangaratta, the applicant was driving a truck registered to his company northward along the Hume Freeway. Police intercepted the vehicle, and with the applicant’s consent they searched it.
The applicant denied the presence of drugs. However, the search revealed:
(a) a total of 47.52 kilograms of cannabis, stored in more than 100 plastic bags, roughly half of which were vacuum-sealed; and
(b) a total of $6,560 in cash, located in the applicant’s wallet and in bundles in a separate bag.
The cannabis was located in a hidden storage section under the base of a bed in the rear of the truck.
On the same day, a search…
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- AGLC
- Johnson v The Queen [2022] VSCA 9
- Case
- [2022] VSCA 9
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the trial judge failed to adequately consider the applicant's role as a courier, which could have potentially led to a more lenient sentence, and whether the sentence imposed was manifestly excessive given the circumstances. The court examined the trial judge's sentencing remarks and the evidence presented to assess these issues. It also considered the principles of proportionality and whether the sentence was appropriate in light of the seriousness of the offences.
The court found that the trial judge did not err in failing to sentence Johnson as a courier, as the evidence did not support such a characterisation. The court held that the sentence was proportionate to the seriousness of the offences and did not consider it manifestly excessive. Given the thorough consideration of the sentencing remarks and evidence, the High Court concluded that the sentence was fair and appropriate. Consequently, the court refused Johnson's application for leave to appeal.
No further orders were made by the court beyond the refusal of leave to appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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