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McNaughton v The Queen

McNaughton v The Queen

Case [2014] VSCA 174 18 August 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0161

ANDREW McNAUGHTON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	HANSEN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2014
DATE OF JUDGMENT:	18 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 174
JUDGMENT APPEALED FROM:	DPP v McNaughton (Unreported, County Court of Victoria, Judge Tinney, 25 July 2013)

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CRIMINAL LAW – Sentencing – Appeal – Multiple drug offences – Conspiracy to traffic cannabis, trafficking methylamphetamine, possession of substances and equipment for trafficking and possession of precursor chemicals Parity – Whether sentencing judge mistook appellant’s role – Whether sentence manifestly excessive – Application for leave refused and appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms F H Todd	Robert Stary
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

HANSEN JA:

I agree with Priest JA.

PRIEST JA:

Introduction

On 2 July 2012, the appellant (now aged 50), pleaded guilty in the County Court to conspiracy to cultivate a drug of dependence (one charge, charge 1); trafficking in a drug of dependence (five charges, charges 2, 3, 4, 5 and 6); possession of substances and equipment for trafficking (one charge, charge 7); and possession of a precursor chemical (one charge, charge 8). He was sentenced on 25 July 2013, according to the table immediately following, so as to produce a total effective sentence of six (6) years and four (4) months’ imprisonment, upon which a non-parole period three (3) years and 10 months’ imprisonment was fixed:

Charge on Indictment Offence Sentence Cumulation

1 Conspiracy to cultivate a drug of dependence[1] (cannabis) 27 months 12 months

2 Trafficking in a drug of dependence[2] (methylamphetamine) 44 months Base

3 Trafficking in a drug of dependence[3] (ecstasy) 30 months 6 months

4 Trafficking in a drug of dependence[4] (cocaine) 18 months —

5 Trafficking in a drug of dependence[5] (MDA) 24 months 4 months

6 Trafficking in a drug of dependence[6] (LSD) 12 months —
[1]Crimes Act 1958, s 321 and Drugs, Poisons and Controlled Substances Act 1981, s 72B. The maximum penalty is 15 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC. The maximum penalty is 15 years’ imprisonment.
[3]Ibid.
[4]Ibid.
[5]Ibid.
[6]Ibid.

7 Possession of substances and/or equipment for trafficking[7] 30 months 10 months

8 Being in possession of precursor chemical[8] 6 months —

Total Effective Sentence: 6 years and 4 months

Non-Parole Period: 3 years and 10 months

Pre-sentence Detention Declared: 192 days

6AAA Statement: 8 years and 6 months’ imprisonment, with a non-parole period of 6 years.

Other orders: Forfeiture, disposal and forensic sample orders.
[7]Drugs, Poisons and Controlled Substances Act 1981, s 71A. The maximum penalty is 10 years’ imprisonment.
[8]Drugs, Poisons and Controlled Substances Act 1981, s 71D. The maximum penalty is five years’ imprisonment.

A judge of this Court granted the appellant leave to appeal on all but one of the 11 grounds in…

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 McNaughton v The Queen

Details

AGLC: McNaughton v The Queen [2014] VSCA 174
Case: [2014] VSCA 174
Decision Date: 18 August 2014

CaseChat Overview and Summary

The appellant, McNaughton, was convicted of various drug-related offences and appealed against the sentence imposed by the sentencing judge. McNaughton was found guilty of conspiracy to traffic in cannabis, trafficking methylamphetamine, possession of substances and equipment for trafficking, and possession of precursor chemicals. The appeal focused on the sentence's fairness and whether the sentencing judge erred in determining McNaughton's role in the offences and whether the sentence was manifestly excessive.

The legal issues addressed in this case included whether the sentencing judge had made an error in assessing McNaughton's role in the drug offences and whether the sentence imposed was manifestly excessive. McNaughton argued that the sentencing judge had misunderstood his role and therefore imposed an unduly harsh sentence. The defence also contended that the sentence was disproportionate to the offences committed.

The court reviewed the sentencing judge's assessment of McNaughton's role in the drug offences and found no error in the determination. The court further held that the sentence imposed was not manifestly excessive, considering the seriousness of the offences and the need for deterrence. The court was satisfied that the sentencing judge had appropriately weighed the relevant factors in imposing the sentence. Consequently, the application for leave to appeal was refused, and the appeal was dismissed.

No specific final orders were made in the text provided. However, based on the outcome, it can be inferred that McNaughton's appeal was dismissed, and the original sentence imposed by the sentencing judge was upheld.

Orders