Johnson v The Queen - [2022] VSCA 9

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 6 months’ imprisonment	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 6 years
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…

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 Johnson v The Queen

Details

AGLC: Johnson v The Queen [2022] VSCA 9
Case: [2022] VSCA 9
Decision Date: 11 February 2022

CaseChat Overview and Summary

The case of Johnson v The Queen involved the applicant, Johnson, who was convicted of trafficking a drug of dependence in a commercial quantity and a related summary offence. Johnson appealed against his sentence, claiming the trial judge erred in not considering him a courier and that the sentence was manifestly excessive. The High Court of Australia was tasked with determining whether leave to appeal should be granted and reviewing the sentence.

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