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Jones v The Queen

Jones v The Queen

Case [2021] VSCA 114 6 May 2021

Manifestly Excessive Sentence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0171

KEANE JONES	Applicant
v
THE QUEEN	Respondent

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JUDGE:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2021
DATE OF JUDGMENT:	6 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 114
JUDGMENT APPEALED FROM:	[2020] VCC 549 (Judge Parrish)

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CRIMINAL LAW — Appeal — Sentence — Application for extension of time — Cultivating a commercial quantity of cannabis and associated offences — Sentence of three years and two months’ imprisonment with one year and ten months non-parole — Whether applicant had impaired mental functioning — Whether exceptions in ss 5(2H)(c)(i) and (e) of the Sentencing Act 1991 applied — Whether drug addiction a mitigating factor — Whether sentence manifestly excessive — Application for extension of time refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms C Boston	James Dowsley & Associates
For the Respondent:	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

On 24 January 2020, the applicant pleaded guilty before a judge in the County Court — accepted by the prosecution to be an ‘early plea’ — to cultivation of a narcotic plant, Cannabis L, in a commercial quantity;[1] trafficking in a drug of dependence, Cannabis L;[2] and possessing a drug of dependence, methylamphetamine, heroin, oxycodone and buprenorphine;[3] and to the related summary offence of possessing a Schedule 4 poison, Seroquel.[4]
[1]Drugs, Poisons and Controlled Substances Act 1981, s 72A. The maximum penalty is 25 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1). The maximum penalty is 15 years’ imprisonment.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is one year’s imprisonment where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 36B. The maximum penalty is a fine of 10 penalty units.

Following a plea in mitigation conducted over two days, on 30 April 2020 the judge sentenced the applicant to a total effective sentence of three years and two months’ imprisonment, with a non-parole period of one year and 10 months, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Cultivating a narcotic plant in a commercial quantity 2 years and 10 months Base

2 Trafficking a drug of dependence 6 months 3 months

3 Possessing a drug of dependence 2 months 1 month

Summary Possessing a Schedule 4 poison $250 fine

Total effective sentence: 3 years and 2 months’ imprisonment

Non-parole period: 1 year and 10 months

Section 6AAA declaration: 4 years and 6 months’ imprisonment, 3 years and 2 months non-parole

Pre-sentence detention: 7 days

Other orders: Forfeiture and disposal orders

The applicant wishes to seek leave to appeal against his sentence on a number of proposed grounds. Since his notice of application for leave to appeal against sentence was filed some three months…

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 Jones v The Queen

Details

AGLC: Jones v The Queen [2021] VSCA 114
Case: [2021] VSCA 114
Decision Date: 6 May 2021

CaseChat Overview and Summary

The case of Jones v The Queen involved the appellant, Jones, who had been convicted of cultivating a commercial quantity of cannabis and associated offences. Following the conviction, Jones was sentenced to three years and two months’ imprisonment with a non-parole period of one year and ten months. Jones applied for an extension of time to appeal the sentence on the grounds of his impaired mental functioning and drug addiction. The appeal centred on whether these factors were relevant exceptions under sections 5(2H)(c)(i) and (e) of the Sentencing Act 1991 and whether the sentence imposed was manifestly excessive.

The court was required to determine whether the appellant’s impaired mental functioning and drug addiction were relevant exceptions that could justify an extension of time to appeal. Additionally, the court needed to assess whether these factors were mitigating circumstances that should have been considered during sentencing and whether the sentence was manifestly excessive. The legal issues included the interpretation of the relevant sections of the Sentencing Act and the assessment of the overall fairness and proportionality of the sentence.

The court found that the appellant's impaired mental functioning and drug addiction did not constitute relevant exceptions under sections 5(2H)(c)(i) and (e) of the Sentencing Act 1991. The court held that while these factors may have been mitigating, they did not warrant an extension of time to appeal. The court further concluded that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. Therefore, the application for an extension of time was refused.

In light of the above, the court dismissed the appeal and upheld the original sentence imposed. The decision underscored the importance of considering the relevant statutory provisions and the principles of sentencing in appeals related to sentence extensions.

Orders