Lee Matt Hearnden v The Queen - [2011] VSCA 369

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)…

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

Case: [2011] VSCA 369
Decision Date: 14 November 2011

CaseChat Overview and Summary

Lee Matt Hearnden, the appellant, was convicted on three counts: trafficking in a drug of dependence, possession of a drug of dependence, and possessing unregistered firearms. The appeal pertains to the sentencing phase of the case, where the appellant contends that the primary judge erred in several respects. The Crown conceded that the judge was incorrect in the maximum penalty applicable to two of the counts, and also suggested that the judge did not adequately consider the appellant's age, absence of relevant prior convictions, and prospects for rehabilitation. The High Court of Australia reviewed the case to determine if the appellant's sentence should be altered.

The court was tasked with determining whether the primary judge had erred in calculating the maximum penalties for the drug trafficking and possession charges, and whether the judge sufficiently considered the appellant's age, criminal history, and potential for rehabilitation. The Crown's concession regarding the maximum penalties meant that the court needed to reassess these aspects of the sentence. Additionally, the court needed to determine whether the judge had appropriately weighed the mitigating factors presented by the appellant.

In its decision, the court found that the primary judge had indeed erred in the calculation of the maximum penalties for two of the counts. Furthermore, the court determined that the judge had not given sufficient consideration to the appellant's age, lack of prior convictions, and potential for rehabilitation. Consequently, the appeal was allowed, and the appellant was re-sentenced to a total effective sentence of three years and nine months’ imprisonment, with a non-parole period of two years. The court held that no point of principle arose from the case.

The final orders of the court were that the appellant's sentence be altered to reflect the corrected maximum penalties and a reassessment of the mitigating factors. The new sentence imposed was three years and nine months’ imprisonment, with a non-parole period of two years. The decision underscored the importance of correctly applying the law and adequately considering all relevant mitigating factors when sentencing.

Orders