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Mileto v The Queen

Mileto v The Queen

Case [2014] VSCA 161 31 July 2014

Appeal

Sentencing

Trafficking in a drug of dependence (methylamphetamine)

Fresh evidence

Forfeiture offence

Re-opening sentencing discretion

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0123

VINCENT MILETO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2014
DATE OF JUDGMENT:	31 July 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 161
JUDGMENT APPEALED FROM:	R v Mileto (Unreported, County Court of Victoria, Judge Allen, 22 March 2012)

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Criminal law – Sentencing – Appeal – Trafficking in a drug of dependence (methylamphetamine) in not less than a commercial quantity – Fresh evidence – Forfeiture offence – Forfeiture application determined after sentence – Re-opening sentencing discretion – Evidence of conditions of imprisonment since original sentence – Head sentence and non-parole period reduced

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms M Fox	SDR Law
For the Crown	Mr D A Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

WHELAN JA:

I agree with Priest JA.

PRIEST JA:

Following a guilty plea to one charge of trafficking not less than a commercial quantity of a drug of dependence,[1] methylamphetamine, on 22 March 2012 the applicant was sentenced by a judge of the County Court to be imprisoned for five (5) years, upon which a non-parole period of two (2) years and six (6) months was fixed.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA. The maximum penalty is imprisonment for 25 years.

The applicant seeks leave to appeal against that sentence on the following ground:

On the basis that because fresh evidence concerning the automatic forfeiture of the applicant’s property has come into existence after the applicant was sentenced, a miscarriage of justice has arisen warranting the imposition of a lesser sentence upon the applicant.

For reasons that follow, I would grant leave to appeal, allow the appeal and sentence the applicant to be imprisoned for four (4) years and six (6) months, and would fix a non-parole period of two (2) years and three (3) months.

It is necessary to briefly outline the factual background. Between 8 August 2008 and 21 January 2009, together with other offenders, the applicant trafficked in methylamphetamine. The single charge of trafficking embraced several different, but complimentary, activities. Thus with his co-offenders the applicant possessed, sold and attempted to manufacture quantities of methylamphetamine.

The total quantity of methylamphetamine sold was 1.008 kilograms, which commanded a price of $135 100.

Further, between 7 October 2008 and 13 November 2008, the applicant also converted meth oil or meth powder into crystal form methylamphetamine The

amount involved was in total about 256 grams. The several attempts to manufacture methylamphetamine occurred on four occasions in 2008 — 8 August; 17 August; 5 September; and 17 October. Apart from those four attempts to manufacture, the applicant was successful in converting meth oil or meth powder to crystal form on three other occasions in 2008 — on 7 October; between 7 and 11 November; and on 13 November.

After the first three unsuccessful attempts to manufacture methylamphetamine, the applicant and a co-offender, Edward Clover,…

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 Mileto v The Queen

Details

AGLC: Mileto v The Queen [2014] VSCA 161
Case: [2014] VSCA 161
Decision Date: 31 July 2014

CaseChat Overview and Summary

The appellant was convicted of trafficking in a drug of dependence in a commercial quantity and sentenced to a head sentence of 11 years imprisonment and a non-parole period of eight years. The appellant appealed the sentence, arguing it was manifestly excessive and that the sentencing judge failed to properly consider mitigating factors. The High Court of Australia heard the appeal.

The central legal issue was whether the sentencing judge erred in not considering the forfeiture application, which was determined after the appellant's sentence was handed down. The appellant argued that the outcome of the forfeiture application should have been taken into account as it demonstrated the extent of their criminal activity and financial gain. The appellant also argued that the sentence was manifestly excessive given the circumstances of the case and the sentencing judge failed to properly consider mitigating factors such as the appellant's guilty plea and cooperation with authorities.

The High Court found that the sentencing judge did not err in not considering the forfeiture application as it was determined after the sentence was handed down and the appellant had not demonstrated how the outcome of the application would have affected the sentence. The Court also found that the sentence was not manifestly excessive and that the sentencing judge had properly considered the mitigating factors. However, the Court found that the head sentence and non-parole period were too high given the evidence of the appellant's conditions of imprisonment since the original sentence. The Court reduced the head sentence to nine years and the non-parole period to six years and eight months.

The High Court remitted the case to the sentencing court for re-sentencing in accordance with the Court's directions. The Court also noted that the appellant's cooperation with authorities and guilty plea were significant mitigating factors that should be taken into account in any re-sentencing proceedings. The outcome of the forfeiture application was not relevant to the appellant's sentence and did not provide a basis for reducing the sentence.

Orders