Lee Matt Hearnden v The Queen
[2011] VSCA 369
•14 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0303 | |
| LEE MATT HEARNDEN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE JA and BEACH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 November 2011 |
| DATE OF JUDGMENT | 14 November 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 369 |
| JUDGMENT APPEALED FROM | R v Hearnden (Unreported, County Court of Victoria, Judge Pilgrim, 27 August 2010) |
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CRIMINAL LAW – Sentencing – Trafficking in a drug of dependence, possession of a drug of dependence and possessing unregistered firearms – Concession – Crown conceding that judge led into error as to maximum penalty applicable to two counts – Whether judge also failed to give sufficient weight to appellant’s age, lack of relevant prior convictions and good prospects of rehabilitation – Appeal allowed – Appellant re-sentenced to a total effective sentence of three years and nine months’ imprisonment with a non-parole period of two years – No point of principle.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M J Croucher | Grigor Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
BEACH AJA:
This is an appeal with leave against a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and three months imposed on the appellant on pleading guilty to one count of trafficking in a drug of dependence (methylamphetamine) (Count 1); five counts of possession of a drug of dependence (methylamphetamine, MDMA, diazepam and cannabis) (Counts 2, 3, 4, 5 and 6); and three counts of possessing unregistered firearms (Counts 7, 8 and 9).
The facts of the offending
The appellant was born on 17 June 1985. He was 23 years of age at the time of the offending and 25 years of age at the time of sentence.
On 23 September 2008, at approximately midnight, he checked into Room 245 at the Frankston International Motel. At approximately 7.00 am, the following morning, police attended the motel and conducted a search of the room.
During the search, police located a black backpack and questioned the appellant as to its contents. He told police that the backpack contained a large amount of money. A search of the backpack revealed the following items:
a) 219 grams of orange compressed powder containing methylamphetamine (7% purity): (Count 1 — Trafficking in a drug of dependence); .:..:.:
b) black folder with traces of methylamphetamine (Count 1 — Trafficking in a drug of dependence):
c) 177 blue tablets, 16 blue tablet portions and blue powder. The tablets were identified as Androlic containing 50 mg of oxymetholone per tablet. The total quantity of the substance including the oxymetholone was 56 grams (Count 5 — Possession of a drug of dependence).
d) 11.3 grams of light orange crystalline powder containing methylamphetamine (7% purity) (Count 1 — Trafficking in a Drug of Dependence);
e) 185 white tablets containing methandienone with a total weight of 27.9 grams (Count 4 — Possession of a drug of dependence);
f) five yellow tablets identified as Diazepam-DP each containing 5mg of diazepam per tablet (Count 6 — Possession of a drug of dependence);
g) 12 yellow tablets identified as Antenax containing 5 mg of diazepam per tablet (Count 6 — Possession of a drug of dependence);
h) plastic bag containing 24 off-white tablets, off-white tablet portions and off-white powder weighing 10.3 grams. The substance contained MDMA (35% purity) (Count 2 — Possession of a drug of dependence);
i) 0.30 grams of orange compressed powder containing methylamphetamine (7% purity) (Count I — Trafficking in a Drug of Dependence);
j) Plastic deal bags, a set of scales, list of names, cash amounting to $15,462 and a wallet containing identification in the name of the appellant.
Shortly after that, the appellant was arrested. Police located a further $5,855 cash in the pocket of the appellant’s jacket. He was taken to the Frankston Police Station for questioning. During his record of interview the appellant stated that he was the lessee of a factory located at 1/43 Tova Drive, Carrum Downs and he gave permission to police to search the factory.
Police conducted a search at the factory and located the following:
a) A plastic bag containing a substance weighing 7.2 grams in the form of orange crystalline powder. The substance contained methylamphetamine (0.12% purity) (Count 1 — Trafficking in a Drug of Dependence);
b) A plastic box with a plastic lid containing 0.3 grams of a substance in the form of white crystalline powder. The substance contained methylamphetamine (0.6% purity) (Count 1 — Trafficking in Drug of Dependence);
c) 205.2 grams of substance in the form of white crystalline powder and orange compressed powder which contained methylamphetamine (0.3% purity) and which, it was conceded by the Crown, contained cutting agents;
d) A plastic measuring spoon with a silver handle with traces of a white powder containing methylamphetamine found on it.
e) A plastic box containing 0.8 grams of white crystalline powder containing methylamphetamine (1.6% purity) (Count 1 — Trafficking in a Drug of Dependence);
f) A set of white and blue electronic scales containing 0.03 grams of white powder containing methylamphetamine (8% purity) (Count 1 — Trafficking in a Drug of Dependence);
g) A plastic bag containing the following:
i. A substance weighing 0.8 grams in the form of three light-brown elongated hexagonal tablets containing methyamphetamine (1.2% purity), the substance also contained MDMA (Count 1 — Trafficking in a Drug of Dependence and Count 2 — Possession of a Drug of Dependence).
ii. One light brown tablet weighing 0.4 grams containing methylamphetamine (1.2% purity), the substance also contained MDMA (Count 1 — Trafficking in a Drug of Dependence and Count 2 — Possession of a Drug of Dependence);
iii. One light-brown black tablet weighing 0.4 grams containing methylamphetamine (1.2% purity), the substance also contained MDMA (Count 1 — Trafficking in a Drug of Dependence and Count 2 — Possession of a Drug of Dependence);
iv. One light-brown hexagonal tablet weighing 0.3 grams containing methyamphetamine (1% purity) the substance also contained MDMA (Count 1 — Trafficking in a Drug of Dependence and Count 2 — Possession of a Drug of Dependence);
v. One light-brown hexagonal tablet weighing 0.3 grams containing methylamphetamine (1.2% purity), the substance also contained MDMA;
vi. One light-brown elongated hexagonal tablet weighing 0.3 grams containing methylamphetamine (3% purity), the substance also contained MDMA
vii. One light-brown pentagonal tablet weighing 0.3 grams containing MDMA (25% purity) (Count 2 — Possession of a Drug of Dependence); and
viii. A substance weighting .02 grams in the form of one yellow tablet portion and yellow powder (the substance contained MDMA 25% purity) (Count 2 — Possession of a Drug of Dependence).
h) Three ampoules identified as diazepam injection DBL containing 10 mg of diazepam per module (Count 6 — Possession of a Drug of Dependence);
i) Cannabis L mixed with plant material, the total weight of the mixture was two grams (Count 3 — Possession of a Drug of Dependence);
j) A Sturm Ruger Mini-14 Model 223 REM calibre Category D semi-automatic centre fire rifle, serial number 180-770663-66, three magazines and a quantity of ammunition (Count 9 — Possession of an Unregistered Category D Longarm);[1]
[1]A mixture of DNA was detected from this firearm; the appellant was not excluded as the contributor. .
k) A Luchnic make 177 air calibre Category A air-rifle, serial number L208 (Count 7 — Possession of an Unregistered Category A Longarm);
l) A home-made pen pistol, model 22 rimfire calibre category H, break-open handgun (Count 8 — Possession of an Unregistered General Category Handgun);
m) Digital scales, ammunition, Taser stun guns, Sunbeam foodsaver vacuum bags;
n) Documentation with names and cash amounts; and
o) A red Ford sedan (registration NEW 011) with a quantity of ammunition in the boot of the car.
The total of the substance containing methylamphetamine located in the motel room and the factory was approximately 481 grams. The total weight of the MDMA located at the motel in Frankston was 10.3 grams (35% purity).
The sentence
The judge sentenced the appellant as follows:
Count on Presentment
Offence
Maximum
Sentence
Cumulation
1.
Traffick drug of dependence (s 7AC DPCS Act 1981) Methylamphetamine
15 years
5 years
Base
2.
Possess drug of dependence (s 73(1) DPCS Act 1981) MDMA
1 year (s 73(1)(b)) – or 5 years (s 73(1)(c))
12 months
3 months[2]
3.
Possess drug of dependence (s 73(1) DPCS Act 1981) Cannabis L
5 Penalty Units (s 73(1)(a))
4.
Possess drug of dependence (s 73(1) DPCS Act 1981) Methandienone
1 year (s 73(1)(b)) – or 5 years (s 73(1)(c))
12 months
5.
Possess drug of dependence (s 73(1) DPCS Act 1981) Oxymetholone
1 year (s 73(1)(b)) – or 5 years (s 73(1)(c))
12 months
6.
Possess drug of dependence (s 73(1) DPCS Act 1981) Diazepam
1 year (s 73(1)(b)) – or 5 years (s 73(1)(c))
12 months
7.
Possess unregistered Category A longarm (s 6(1) Firearms Act1996)
2 years
9 months
8.
Possess unregistered general Category handgun (s 7(1) Firearms Act 1996
4 years
18 months
3 months[3]
9.
Possess unregistered Category A longarm (s 6(4) Firearms Act 1996)
4 years
3 months
Total effective sentence 5 years and 6 months Non-parole period 3 years and 3 months [2]The judge did not state this but it appears that is what he intended.
[3]The judge did not state this but it appears that is what he intended.
Grant of leave to appeal
Redlich JA granted leave to appeal on the following grounds:
· Ground 1 — The judge made errors in the maximum penalty applicable to Counts 3 and 7.
· Ground 2 — The judge erred in sentencing the appellant on Count 1 by treating the quantity of substance involved as 290 grams whereas in was in fact 219 grams.
· Ground 3 — The judge erred in imposing sentences on Counts 4, 5 and 6 which are disproportionate to the nature and gravity of the offending.
· Ground 4 — The judge erred in failing to give sufficient weight to the appellant’s relatively young age and lack of relevant prior convictions.
· Ground 5 — Manifest excessiveness.
Grounds 1 and 3 established
The contention that the judge erred in treating the quantity of substance for the purpose of Count 1 as 290 grams rather than 219 grams was not persisted in. As to Grounds 1 and 3, however, it is clear, as the Crown concedes, that they are made out. The error of the judge in respect of Counts 1 and 3 is an unfortunate instance of a sentencing judge being led into error by a prosecutor, who was not counsel who appeared before us.
In the circumstances of this case, the errors which are the subject of Grounds 1 and 3 are such as to vitiate the sentences imposed on Counts 1, 2, 3, 4, 5 and 6 and also the orders for cumulation. It follows that the sentences passed below must be set aside and the appellant re-sentenced afresh.
Relevant sentencing
Ordinarily with drug trafficking offences, general deterrence is at the forefront of sentencing considerations. In this case, however, it is also necessary to bear in mind the relative youth of the appellant, his lack of relevant prior convictions and the evidence below as to his relatively good prospects of rehabilitation. We should say, too, that we regard some of the weapons offences more seriously than the judge appears to have done, particularly Count 8.
In all the circumstances, and not least the relatively small quantities of substances involved in Counts 2, 3, 4, 5 and 6, we propose to re-sentence the appellant as follows:
Count on Presentment
Offence
Maximum
Sentence
Cumulation
1.
Traffick drug of dependence (s 7AC DPCS Act 1981) Methylamphetamine
15 years
3 years
Base
2.
Possess drug of dependence (s 73(1) DPCS Act 1981) MDMA
1 year (s 73(1)(b)) – or 5 years (s 73(1)(c))
9 months
3 months
3.
Possess drug of dependence (s 73(1) DPCS Act 1981) Cannabis L
5 Penalty Units (s 73(1)(a))
2 penalty units
4.
Possess drug of dependence (s 73(1) DPCS Act 1981) Methandienone
1 year (s 73(1)(b)) – or 5 years (s 73(1)(c))
3 months
5.
Possess drug of dependence (s 73(1) DPCS Act 1981) Oxymetholone
1 year (s 73(1)(b)) – or 5 years (s 73(1)(c))
3 months
6.
Possess drug of dependence (s 73(1) DPCS Act 1981) Diazepam
1 year (s 73(1)(b)) – or 5 years (s 73(1)(c))
1 month
7.
Possess unregistered Category A longarm (s 6(1) Firearms Act1996)
2 years
3 months
8.
Possess unregistered general Category handgun (s 7(1) Firearms Act 1996)
4 years
18 months
6 months
9.
Possess unregistered Category A longarm (s 6(4) Firearms Act 1996)
4 years
12 months
Total effective sentence 3 years and 9 months Non-parole period 2 years
We shall order that three months of the sentence imposed on Count 2 and six months of the sentence imposed on Count 9 be served cumulatively on each other and on the sentence imposed on Count 2, making a total effective sentence of three years and nine months, and we shall order a non-parole period of two years.
(Discussion ensued)
The orders of the Court are as follows:
1. The appeal is allowed.
2. The sentences passed below are set aside.
3.The appellant is re-sentenced as follows –
Count 1— 3 years’ imprisonment;
Count 2— 9 months’ imprisonment;
Count 3 — 2 penalty units;
Count 4— 3 months’ imprisonment;
Count 5— 3 months’ imprisonment;
Count 6— 1 month’s imprisonment;
Count 7— 3 months’ imprisonment;
Count 8— 18 months’ imprisonment; and
Count 9— 12 months’ imprisonment.
4.It is ordered that three months of the sentence imposed on Count 2 and six months of the sentence imposed on Count 8 be served cumulatively on each other and on the sentence imposed on Count 1, making a total effective sentence of three years and nine months.
5. We order a non-parole period of two years.
6.It is declared that but for the applicant’s plea of guilty, the total effective sentence to which he would have been sentenced would have been six years’ imprisonment, with a non-parole period of four years.
7.It is declared the number of days already served under the sentence is 641 days, not including this day, and it is directed the fact of the declaration and its details be entered in the records of the Court.
8. All other orders made below are confirmed.
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