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OPQ v The Queen

OPQ v The Queen

Case [2012] VSCA 115 8 June 2012

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SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0289

O P Q Appellant

v

THE QUEEN Respondent

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JUDGES MAXWELL ACJ and NEAVE JA

WHERE HELD MELBOURNE

DATE OF HEARING 22 May 2012

DATE OF JUDGMENT 8 June 2012

MEDIUM NEUTRAL CITATION [2012] VSCA 115

JUDGMENT APPEALED FROM DPP v [O P Q] (Unreported, County Court of Victoria, Judge Dean, 28 October 2011)
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CRIMINAL LAW – Appeal – Sentence – Attempted possession of marketable quantity of border controlled drug – Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’) s 307.6 – Guilty plea – Whether sentence of six years’ imprisonment with non parole period of three years and six months manifestly excessive – HIV positive – Post-traumatic stress disorder – Whether excessive weight given to deterrence – Appeal dismissed.
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Appearances: Counsel Solicitors

For the Appellant Mr O P Holdenson QC Lewenberg & Lewenberg

For the Crown Mr D D Gurvich Director of Public Prosecutions (Cth)
MAXWELL ACJ:
1 I have had the advantage of reading in draft the reasons for judgment of Neave JA. I too would dismiss the appeal, for the reasons which her Honour gives.

2 In paragraph 39, her Honour refers to the table prepared by the respondent of sentences imposed for Commonwealth importation and possession offences involving a marketable quantity of a drug. Counsel appearing for the Commonwealth Director informed the Court that this table had been prepared in response to the statement in Nguyen v The Queen[1] that it would be of assistance to sentencing courts, and to this Court on appeal, if the Commonwealth Director could identify comparable cases from across Australia which could be used as a reference point for sentencing, or appellate review of sentencing, in particular cases.
[1](2011) 207 A Crim R 380, 392 [39] (Maxwell P).

3 As Neave JA has said, having this information in convenient tabular form was of considerable assistance in addressing the appellant’s contention that the sentence here imposed fell outside the range reasonably open to the judge in the circumstances of the case.[2]
[2]See also ibid 406, [104] (Redlich JA).

NEAVE JA:
4 The appellant was sentenced to six years’ imprisonment, with a non-parole period of three years and six months, following his plea of guilty to one charge of attempting to possess a marketable quantity of a border controlled drug, contrary to ss 307.6(1) and 11.1(1) of the Criminal Code.[3] The maximum penalty prescribed for that offence is 25 years’ imprisonment and/or fine of 5,000 penalty units.
[3]Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’).

5 The appellant now appeals against that sentence.

Background

6 Prior to committing the offence to which he pleaded guilty, the appellant collected or attempted to collect packages sent to various addresses in Hender Street, Ringwood East, or to various post offices in that area. The contents of those packages were unknown and the appellant was not charged for collecting them.

7 The offences to which…

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 OPQ v The Queen

Details

AGLC: OPQ v The Queen [2012] VSCA 115
Case: [2012] VSCA 115
Decision Date: 8 June 2012

CaseChat Overview and Summary

OPQ was charged with the offence of attempted possession of a marketable quantity of a border controlled drug. The matter came before the court on an appeal against the sentence imposed. The trial judge had sentenced OPQ to six years' imprisonment with a non-parole period of three years and six months. The central issues for the court were whether the sentence was manifestly excessive, and if so, whether the trial judge had given excessive weight to the deterrence of the crime.

The court found that while the sentence was indeed severe, it was not manifestly excessive. The trial judge had appropriately considered OPQ's HIV positive status and post-traumatic stress disorder, but had also emphasised the need for general deterrence, given the significant quantity of the drug involved. The court upheld the trial judge's decision, holding that the sentence was within the range of reasonable outcomes and did not give excessive weight to deterrence. The appeal was dismissed, and the original sentence was upheld.

The court's decision was grounded in the need to balance the personal circumstances of the offender with the societal imperative to deter serious drug-related offences. The severity of the sentence reflected both the gravity of the offence and the importance of deterrence in the context of border controlled drugs. The court confirmed that the trial judge's approach was consistent with the principles of sentencing under the Criminal Code.

Orders