DPP v Kumova (Unreported, County Court of Victoria, Judge O’Neill, 18 May 2011)
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CRIMINAL LAW – Sentencing – Trafficking in a large commercial quantity of methylamphetamine – Appellant sentenced to total effective sentence of 10 years’ imprisonment with a non-parole period of seven years and six months – Non-parole period – Whether judge erred in failing to give effect to intention of fixing a ‘shorter than usual’ non-parole period – Appeal dismissed – Relevance to sentencing of a ‘usual non-parole period’ – Wallace v R [2012] VSCA 114, Romero v R (2011) 206 A Crim R 519, R v Bolton and Barker [1981] 1 VR 692, R v Detanamo [2007] VSCA 160, R v Tran and Tran [2006] VSCA 222, Hili v The Queen (2010) 242 CLR 532 and Muldrock v The Queen (2011) 244 CLR 120, referred to.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr M J Croucher SC with Ms Sarah Leighfield
Grigor Lawyers
For the Crown
Mr P B Kidd SC
Mr C Hyland, Solicitor for Public Prosecutions
NETTLE JA:
On 29 April 2011 the appellant pleaded guilty before a judge of the County Court to trafficking in a large commercial quantity of methylamphetamine. The offending was committed over the period 20 November 2009 to 30 March 2010. During that time, the appellant was involved in 200 drug-related telephone calls concerning 13.723 kilograms of the substance, as follows: (1) 896 grams was offered to be sold in four offers to sell; (2) 224 grams was agreed to be sold on one occasion; (3) 7.840 kilograms was sold and supplied in 17 transactions; (4) there were approximately 15 other transactions where the amount that was supplied could not be quantified; and (5) 4.763 kilograms was obtained by the appellant for the purpose of sale but intercepted and seized by police before the sale could be effected.
Following a plea in mitigation of penalty, the judge sentenced the appellant to ten years’ imprisonment (the maximum penalty is life imprisonment) with a non-parole period of seven years and six months.
The appellant sought leave to appeal against the sentence on two proposed grounds, namely: (1) that the judge erred in failing to give effect to his intention to fix a shorter than usual non-parole period; and (2) the judge erred in paying undue regard to the gross weight of the substance trafficked (13.7 kilograms) and insufficient regard to the fact that the methylamphetamine in question was only about 10 per cent pure.
On 14 September 2011, I granted him leave to appeal on Ground 1 but refused him leave to appeal on Ground 2. He did not renew his application for leave to appeal…
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.
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Details
AGLC
Kumova v The Queen [2012] VSCA 212
Case
[2012] VSCA 212
Decision Date
CaseChat Overview and Summary
The appellant, Kumova, appealed against the sentence imposed by the County Court, contending that the judge erred in failing to give effect to the intention of fixing a ‘shorter than usual’ non-parole period. The nature of the dispute involved the sentencing of the appellant for trafficking in a large commercial quantity of methylamphetamine. The Supreme Court of Victoria was tasked with reviewing the decision of the County Court in this matter.
The primary legal issue for the court was whether the County Court judge had erred in determining the non-parole period of the appellant’s sentence. Specifically, the court needed to decide whether the judge had appropriately considered the intention to fix a shorter than usual non-parole period. The court examined relevant authorities, including Wallace v R, Romero v R, R v Bolton and Barker, R v Detanamo, R v Tran and Tran, Hili v The Queen, and Muldrock v The Queen, to understand the principles guiding the imposition of a non-parole period.
The Supreme Court found that the County Court judge had adequately considered the principles set out in the relevant authorities. The judge had assessed the seriousness of the offence, the appellant's culpability, and the need for deterrence and denunciation. The court concluded that the judge had correctly exercised their discretion and appropriately balanced the considerations relevant to sentencing. The appeal was dismissed, and the original sentence of 10 years’ imprisonment with a non-parole period of seven years and six months was upheld.