Milk v The Queen - [2015] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0106

SARAH MILK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and PRIEST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2015
DATE OF JUDGMENT:	7 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 237
JUDGMENT APPEALED FROM:	DPP v Milk (Unreported, County Court of Victoria, Judge Chettle, 8 May 2015)

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CRIMINAL LAW – Appeal – Sentence – Trafficking drug of dependence (3 charges) – Sentence 5 years 1 month, non-parole period 3 years 6 months – Whether manifestly excessive – Persistent offending over 4 years – Profit motive – Substantial profits derived – Applicant was victim of drug related home-invasion – Whether ‘extra-curial punishment’ – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles	Stary Norton Halphen
For the Respondent	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P:

For the reasons given by Priest JA, which I have had the benefit of reading in draft, I too would refuse leave to appeal.

PRIEST JA:

Introduction

Sarah Milk, the applicant, was, for four years or so, in the business of trafficking illicit drugs, principally methylamphetamine.

Between March 2010 and 30 June 2014, her practice was to purchase ‘speed’ (amphetamine) and ‘ice’ (methylamphetamine) and to sell it to people she knew. She trafficked for substantial profit, although her exact gains are difficult to calculate.

Police executed a search warrant on her Gisborne premises on 30 June 2014. Incriminating material was found, and the applicant later made admissions in a record of interview.

On 4 May 2015, the applicant — who is now aged 47 years — pleaded guilty in the County Court to three counts of trafficking a drug of dependence;[1] two counts of possessing a drug of dependence;[2] one count of handling stolen goods;[3] and one summary charge of dealing with the proceeds of crime.[4]
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is 15 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is imprisonment for one year.
[3]Crimes Act 1958, s 88. The maximum penalty is 15 years’ imprisonment.
[4]Crimes Act 1958, s 193. The maximum penalty is two years’ imprisonment.

Following a plea, on 8 May 2015 the applicant was sentenced to a total effective sentence of five years and one month’s imprisonment, with a non-parole period of three years and six months, according to the following table:

Charge

Offence

Sentence

Cumulation

1

Trafficking in a drug of dependence (methylamphetamine)

4½ years

Base

2

Trafficking in a drug of dependence (cannabis)

9 months

3 months

3

Trafficking in a drug of dependence (amphetamine)

6 months

3 months

4

Possessing a drug of dependence (Alprazolam—Xanax)

7 days

—

5

Possessing a drug of dependence (MDMA)

7 days

—

6

Handling stolen goods

3 months

1 month

Summary

Dealing with property suspected of being proceeds of crime

7…

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 Milk v The Queen

Details

AGLC: Milk v The Queen [2015] VSCA 237
Case: [2015] VSCA 237
Decision Date: 7 September 2015

CaseChat Overview and Summary

The appellant, Milk, appealed against his conviction and sentence for trafficking in a drug of dependence, arguing that the sentence was manifestly excessive. He had been found guilty of three charges and was sentenced to five years and one month in prison, with a non-parole period of three years and six months. The appellant argued that his sentence was too harsh, given his status as a victim of a drug-related home invasion, and that the trial judge had failed to consider this as a mitigating factor. The appellant also claimed that the sentence constituted 'extra-curial punishment' due to the significant impact it had on his life and family.

The legal issues before the court were whether the sentence was manifestly excessive and whether the trial judge had failed to take into account the appellant's status as a victim of a drug-related home invasion. The court needed to determine if the sentence was proportionate to the appellant's offending and if the trial judge had erred in not considering the mitigating circumstances of the case. The court also needed to assess whether the sentence constituted 'extra-curial punishment'.

The court found that the appellant's offending was persistent over a period of four years and that he had derived substantial profits from his activities. The court held that the sentence was not manifestly excessive, as it was proportionate to the appellant's offending and took into account his criminal history. The court also found that the trial judge had not erred in failing to consider the appellant's status as a victim of a drug-related home invasion as a mitigating factor, as it was not relevant to the seriousness of the offending. The court dismissed the appeal and denied leave to appeal, holding that the sentence was appropriate and did not constitute 'extra-curial punishment'. The court held that the appellant's status as a victim of a drug-related home invasion did not mitigate the seriousness of his offending and that the sentence was proportionate to the appellant's criminal history and offending.

Orders