Pollard v The Queen - [2015] VSCA 138

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0261

RICHARD POLLARD

THE QUEEN

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JUDGES:	ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2015
DATE OF JUDGMENT:	9 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 138
JUDGMENT APPEALED FROM:	DPP v Pollard (Unreported, County Court of Victoria, Judge Lacava, 31 October 2014)

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CRIMINAL LAW – Appeal – Sentence – Trafficking multiple drugs and other drug-related offences at distinctly different times – Later offending when on bail for first offending – Two indictments – Orders for partial cumulation – Total effective sentence of 11 years’ imprisonment with non-parole period of seven years and four months’ imprisonment – Whether sentence imposed for one offence manifestly excessive – Whether orders for cumulation resulted in manifestly excessive total effective sentence and non-parole period – Totality – Appeal allowed in part – New total effective sentence of nine years and nine months’ imprisonment, with non-parole period of six years and six months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Turnbull Lawyers
For the Crown	Mr D Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA
REDLICH JA
WEINBERG JA:

Richard Pollard, a man now aged 33, appeals by leave against sentence passed upon him by a judge in the County Court on 31 October 2014. On that day, the judge imposed sentences on charges laid by two indictments and made orders for cumulation. The result was a total effective sentence of 11 years’ imprisonment. The judge fixed a non-parole period of 7 years and 4 months’ imprisonment.

Grounds

The appellant relies upon the following grounds:

(1)the sentence imposed on the second charge on the second indictment is manifestly excessive;
(2)the direction for partial cumulation of the sentence imposed on the second charge on the second indictment breaches the principle of totality; and
(3)the sentences imposed on the first and second indictments, the total effective sentence and the non-parole period are manifestly excessive.

Summary of charges and disposition

Put shortly, the charges laid against the appellant, the sentences imposed, and orders for cumulation, were as follows:

Charge Offence Maximum Sentence Cumulation

First Indictment – D10029924

1 Trafficking in a commercial quantity of drug of dependence (MDMA) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA] 25 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA] 5 years Base

2 Trafficking in a commercial quantity of a drug of dependence (Methylamphetamine) 25 years 5 years 2 years

Charge Offence Maximum Sentence Cumulation

3 Trafficking in a drug of dependence (Fentanyl) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC] 15 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC 2 years -

4 Trafficking in a drug of dependence (Cocaine) 15 years 2 years -

5 Trafficking in a drug of dependence (Cannabis) 15 years 3 years 1 year

6 Trafficking in a drug of dependence (Ketamine) 15 years 2…

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 Pollard v The Queen

Details

AGLC: Pollard v The Queen [2015] VSCA 138
Case: [2015] VSCA 138
Decision Date: 9 June 2015

CaseChat Overview and Summary

The appellant, Pollard, was convicted of multiple drug trafficking and other drug-related offences on two separate occasions. The first conviction involved drug trafficking and related offences, while the second involved further drug trafficking while on bail for the first offence. Pollard was sentenced to a total effective sentence of 11 years' imprisonment, with a non-parole period of seven years and four months. Pollard appealed against the sentence, arguing that it was manifestly excessive and that the orders for partial cumulation resulted in a manifestly excessive total effective sentence and non-parole period.

The court considered whether the sentence imposed for one of the offences was manifestly excessive and whether the orders for partial cumulation resulted in a manifestly excessive total effective sentence and non-parole period. The court noted that the offences were committed at distinctly different times and that the later offending occurred while Pollard was on bail for the first offence. The court also considered the principle of totality, which requires that the total sentence should not be manifestly excessive. The court found that the sentence imposed for one of the offences was not manifestly excessive, but that the orders for partial cumulation resulted in a manifestly excessive total effective sentence and non-parole period.

The court allowed the appeal in part and ordered a new total effective sentence of nine years and nine months’ imprisonment, with a non-parole period of six years and six months’ imprisonment. The court noted that the new sentence took into account the principle of totality and was not manifestly excessive. The court also noted that the new sentence reflected the seriousness of the offences and the need to deter Pollard and others from engaging in similar offending. The new sentence also provided an appropriate balance between the punishment and rehabilitation of Pollard.

Orders