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Ludwig v The Queen

Ludwig v The Queen

Case [2015] VSCA 35 10 March 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0177

SAMUEL RYAN LUDWIG

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 February 2015
DATE OF JUDGMENT:	10 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 35
JUDGMENT APPEALED FROM:	R v Ludwig [2014] VCC 997 (Judge Parsons)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence out of time – Multiple charges – Whether sentencing judge gave any or any proper consideration to relative youth of applicant – Manifest excess – Whether sentencing judge failed to give any or any proper consideration to relevant features of prohibited imports – Differential maximum penalties imposed by Parliament in respect of importation and possession.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	David Barrese & Associates
For the Crown	Mr D D Gurvich	Commonwealth Director of Public Prosecutions

WEINBERG JA
SANTAMARIA JA:

Introduction

On 5 March 2014, the applicant pleaded guilty in the County Court at Melbourne to a Commonwealth indictment containing the following charges: trafficking a marketable quantity of a controlled drug[1] (charge 1), importing a marketable quantity of a border controlled drug[2] (charges 2 and 5), importing Tier 2 goods[3] (charges 3 and 6), importing a marketable quantity of a border controlled precursor[4] (charge 4) and possession of a controlled drug[5] (charge 7). He also pleaded guilty to four uplifted summary charges.
[1]Criminal Code Act 1995 (Cth) s 302.3(1).
[2]Criminal Code Act 1995 (Cth) s 307.2(1).
[3]Customs Act 1901 (Cth) s 233BAB(5).
[4]Criminal Code Act 1995 (Cth) s 307.12(1).
[5]Criminal Code Act 1995 (Cth) s 308.1(1).
Following a plea hearing on 9 May 2014, the applicant was sentenced by the learned trial judge to be imprisoned for three years and 11 months and, after serving 30 months’ imprisonment, a Recognisance Release Order for a period of two years, according to the following table:[6]
[6]Section 19 of the Crimes Act 1914 (Cth) provides for cumulative, partly cumulative and concurrent sentences.

Charge Offence Penalty Sentence

1 Trafficking a marketable quantity of a controlled drug contrary to subsection 302.3(1) of the Criminal Code (Cth). 25 years
24 months

Head sentence, commencing 9 May 2014.

2 Import a marketable quantity of a border controlled drug contrary to subsection 307.2(1) of the Criminal Code (Cth). 25 years 15 months
Commences 18 months after the commencement of sentence on charge 1.

3 Import Tier 2 goods contrary to subsection 233BAB(5) of the Customs Act 1901 (Cth). 10 years 6 months
Commences 30 months after the commencement of sentence on charge 1.

4 Import a marketable quantity of a border controlled precursor contrary to subsection 307.12(1) of the Criminal Code (Cth). 15 years. 12 months
Commences 30 months after the commencement of sentence on charge 1.

5 Import a marketable quantity of a border controlled drug contrary to subsection 307.2(1) of the Criminal Code (Cth). 25 years. 6 months
Commences 39 months after the commencement of sentence…

*Charge*	*Offence*	*Penalty*	*Sentence*
1	Trafficking a marketable quantity of a controlled drug contrary to subsection 302.3(1) of the Criminal Code (Cth).	25 years	24 months Head sentence, commencing 9 May 2014.
2	Import a marketable quantity of a border controlled drug contrary to subsection 307.2(1) of the Criminal Code (Cth).	25 years	15 months Commences 18 months after the commencement of sentence on charge 1.
3	Import Tier 2 goods contrary to subsection 233BAB(5) of the Customs Act 1901 (Cth).	10 years	6 months Commences 30 months after the commencement of sentence on charge 1.
4	Import a marketable quantity of a border controlled precursor contrary to subsection 307.12(1) of the Criminal Code (Cth).	15 years.	12 months Commences 30 months after the commencement of sentence on charge 1.
5	Import a marketable quantity of a border controlled drug contrary to subsection 307.2(1) of the Criminal Code (Cth).	25 years.	6 months Commences 39 months after the commencement of sentence…

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 Ludwig v The Queen

Details

AGLC: Ludwig v The Queen [2015] VSCA 35
Case: [2015] VSCA 35
Decision Date: 10 March 2015

CaseChat Overview and Summary

Ludwig and The Queen is a case before the court regarding an application for leave to appeal against a sentence that was imposed out of time. The applicant, Ludwig, is appealing the sentence on multiple charges, contending that the sentencing judge did not appropriately consider his relative youth or the relevant features of the prohibited imports in question. The court was tasked with determining whether the sentencing judge's decision exhibited a manifest excess or if there was a failure to give due consideration to these factors.

The legal issues at the core of this case revolve around the adequacy of the sentencing process. Ludwig's primary contention was that the sentencing judge did not properly weigh his relative youth, a factor that could have resulted in a lesser sentence. Furthermore, Ludwig argued that the judge failed to adequately consider the nature and significance of the prohibited imports, which had differential maximum penalties imposed by Parliament. These arguments were framed within the context of whether the sentence imposed was manifestly excessive and if there was a failure to consider relevant mitigating factors.

The court meticulously reviewed the sentencing judge's decision and the factors considered. It found that while the sentencing judge did take into account the applicant's age, this alone did not warrant a reduction in sentence given the severity of the charges. Regarding the prohibited imports, the court held that the judge appropriately assessed the nature of the imports and their potential impact. The court concluded that there was no manifest excess in the sentence and that all relevant considerations had been appropriately addressed. Consequently, the application for leave to appeal was dismissed.

The court's final orders were that the application for leave to appeal against the sentence was dismissed. This outcome signifies that the court found no grounds for an appeal based on the arguments presented by Ludwig concerning the sentencing judge's consideration of his youth and the prohibited imports.

Orders