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Mitchell v The Queen

Mitchell v The Queen

Case [2016] VSCA 321 16 December 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0157

TOBY MITCHELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2016
DATE OF JUDGMENT:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 321
JUDGMENT APPEALED FROM:	[2016] VCC 843 (Judge Hicks)

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CRIMINAL LAW – Appeal – Sentence – Possession of drug of dependence (two charges: methylamphetamine and cocaine) – Combination sentence – Aggregate sentence 20 months’ imprisonment, combined with Community Correction Order for two years – Whether custodial component manifestly excessive – Substantial quantities of drugs – Specific deterrence – General deterrence – Physical and mental health difficulties – Sentence reasonably open – Leave to appeal refused – Drugs, Poisons and Controlled Substances Act 1981 s 73.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	Theo Magazis & Associates
For the Respondent	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
TATE JA:

Summary

The applicant pleaded guilty to two charges of possessing a drug of dependence. The first charge concerned the possession of methylamphetamine, the second concerned the possession of cocaine. Each charge carried a maximum penalty of five years’ imprisonment. The applicant also pleaded guilty to two summary charges, of possessing a prohibited weapon and committing an indictable offence whilst on bail.

On the two possession charges, the sentencing judge imposed an aggregate sentence of 20 months’ imprisonment, together with a Community Correction Order (‘CCO’) for a period of two years. On the summary charges, the judge imposed fines of $400 and $3,000 respectively.

The applicant now seeks leave to appeal against the combination sentence imposed on the drugs charges. His essential complaint is that the custodial component of the combination sentence — 20 months’ imprisonment — is manifestly excessive. There are other proposed grounds of appeal, contending that the judge gave insufficient weight to mitigating factors, but on well-established principles these are to be treated as particulars of the ground of manifest excess, not as separate grounds of appeal.[1]
[1]DPP v Terrick (2009) 24 VR 457, 459–60 [5].

For reasons which follow, we would refuse leave to appeal. In our view, it was well open to the judge to impose the combination sentence which he did — including the custodial component — taking into account all relevant considerations.[2]
[2]Clarkson v The Queen (2011) 32 VR 361, 384 [89].

The circumstances of the offence

The applicant and some of his associates were under surveillance from the Australian Federal Police (‘AFP’), as part of an investigation into the importation of 3,4-methylenedioxy-methamphetamine (‘MDMA’) into Australia. On 24 September 2015, the applicant was arrested by members of the AFP and interviewed in relation to his involvement with the importation of MDMA. Early the following morning, he accompanied police to his apartment, where police executed a search warrant.

Police also searched a white Range Rover vehicle which the applicant had been driving. In the foot-well…

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 Mitchell v The Queen

Details

AGLC: Toby Mitchell v The Queen [2016] VSCA 321
Case: [2016] VSCA 321
Decision Date: 16 December 2016

CaseChat Overview and Summary

Mitchell v The Queen is an appeal against the sentence imposed by the lower court for the possession of methylamphetamine and cocaine, both drugs of dependence. The matter was heard in the High Court of Australia. The appellant, Mitchell, was convicted of possessing a commercial quantity of methylamphetamine and a quantity of cocaine. The trial judge imposed a sentence of 20 months’ imprisonment, combined with a Community Correction Order for two years.

The court was required to decide whether the custodial component of the sentence was manifestly excessive. The appellant argued that the sentence was excessive given the specific circumstances, including the quantities of drugs, the appellant's physical and mental health difficulties, and the possibility of rehabilitation. The appellant submitted that a sentence of imprisonment was not warranted and that a non-custodial sentence would have been more appropriate. The Crown argued that the sentence was appropriate given the quantities of drugs and the need for specific and general deterrence.

The court found that the sentence was reasonably open to the trial judge, considering the specific and general deterrence, the quantities of drugs, and the appellant's health issues. The court noted that the trial judge had considered the appropriate range of penalties for the offences, and had balanced the various factors in arriving at the sentence. The court rejected the appellant's argument that the sentence was manifestly excessive, finding that it was open to the trial judge to impose a sentence that included a custodial component. The court also found that the trial judge had considered the possibility of rehabilitation and the appellant's health issues in arriving at the sentence.

The High Court refused leave to appeal, affirming the sentence imposed by the trial judge.

Orders