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Powell v The Queen

Powell v The Queen

Case [2015] VSCA 93 6 May 2015

Criminal Liability

Sentencing

Breach of Contract

Unconscionable Conduct

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0251

RICHARD POWELL	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2015
DATE OF JUDGMENT:	6 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 93
JUDGMENT APPEALED FROM:	DPP v Powell (Unreported, County Court of Victoria, Judge Wischusen, 24 August 2014)

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CRIMINAL LAW – Sentence – Multiple offences – Being a prohibited person in possession of two firearms (.22 calibre handgun and sawn-off 12-gauge shotgun) and trafficking in a drug of dependence – Total effective sentence of 2 years and 9 months with non-parole period of 1 year and 9 months – Whether individual sentence of 2 years for firearms offence manifestly excessive – Evidence that handgun not functional – Appellant did not possess ammunition for either firearm – No prior convictions for firearms offences, limited history of violence – Re-sentenced to 15 months’ imprisonment for firearms offence – Total effective sentence 2 years with non-parole period of 15 months.

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

WEINBERG JA
KYROU JA:

The appellant pleaded guilty in the County Court at Melbourne to having trafficked in a drug of dependence, possession of a substance, material or equipment relating to trafficking in a drug of dependence, possession of a drug of dependence, and being a prohibited person in possession of a firearm. He also pleaded guilty to three summary charges involving possession of a prohibited weapon.

On 22 August 2014, he was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1 Trafficking in a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 71AC]
(Methylamphetamine) 15 years 1 year 6 months

2 Possessing a substance, material or equipment relating to trafficking a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 71A] 10 years 6 months 3 months

3 Possessing a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 73]
(Ecstasy) 30 penalty units or 1 year $100 fine with conviction N/A

4 Prohibited person in possession of a firearm [Firearms Act 1996 (Vic) s 5(1)]
(Jennings .22 calibre handgun and 12 gauge shotgun) 1200 penalty units or 10 years 2 years Base

Summary Charge 10 Possess prohibited weapon without exemption or approval [Control of Weapons Act 1990 (Vic) s 5AA]
(Tomahawk axe) 240 penalty units or 2 years 1 month -

Summary Charge 11 Possess prohibited weapon without exemption or approval
(Butterfly knife) 240 penalty units or 2 years 1 month -

Summary Charge 12 Possess prohibited weapon without exemption or approval
(Knuckle Duster) 240 penalty units or 2 years 1 month -

Total Effective Sentence: 2 years 9 months

Non-Parole Period: 1 year 9 months

Pre-sentence Detention Declared: 10 days

6AAA Statement: 4 years’ imprisonment with a non-parole period of 2 years 6…

Charge	Offence	Maximum	Sentence	Cumulation
1	Trafficking in a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 71AC] (Methylamphetamine)	15 years	1 year	6 months
2	Possessing a substance, material or equipment relating to trafficking a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 71A]	10 years	6 months	3 months
3	Possessing a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 (Vic) s 73] (Ecstasy)	30 penalty units or 1 year	$100 fine with conviction	N/A
4	Prohibited person in possession of a firearm [Firearms Act 1996 (Vic) s 5(1)] (Jennings .22 calibre handgun and 12 gauge shotgun)	1200 penalty units or 10 years	2 years	Base
Summary Charge 10	Possess prohibited weapon without exemption or approval [Control of Weapons Act 1990 (Vic) s 5AA] (Tomahawk axe)	240 penalty units or 2 years	1 month	-
Summary Charge 11	Possess prohibited weapon without exemption or approval (Butterfly knife)	240 penalty units or 2 years	1 month	-
Summary Charge 12	Possess prohibited weapon without exemption or approval (Knuckle Duster)	240 penalty units or 2 years	1 month	-
Total Effective Sentence:	2 years 9 months
Non-Parole Period:	1 year 9 months
Pre-sentence Detention Declared:	10 days
6AAA Statement:	4 years’ imprisonment with a non-parole period of 2 years 6…

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 Powell v The Queen

Details

AGLC: Powell v The Queen [2015] VSCA 93
Case: [2015] VSCA 93
Decision Date: 6 May 2015

CaseChat Overview and Summary

The appellant was convicted of being a prohibited person in possession of two firearms, namely a.22 calibre handgun and a sawn-off 12-gauge shotgun, and trafficking in a drug of dependence. The case was heard in the High Court of Australia, which was tasked with determining the appropriate sentence for the appellant's multiple offences. The central legal issue was whether the individual sentence of 2 years for the firearms offence was manifestly excessive, considering the totality of the circumstances. The court needed to weigh factors such as the non-functionality of the handgun, the absence of ammunition for either firearm, the appellant's lack of prior convictions for firearms offences, and the limited history of violence.

The High Court determined that the original sentence was manifestly excessive, particularly for the firearms offence. The court found that the handgun was not functional, and the appellant did not possess ammunition for either firearm, which lessened the risk posed by the firearms. Additionally, the appellant had no prior convictions for firearms offences and a limited history of violence, which were mitigating factors. Based on these considerations, the court re-sentenced the appellant to 15 months’ imprisonment for the firearms offence, resulting in a total effective sentence of 2 years with a non-parole period of 15 months.

The High Court's decision highlights the importance of individualised sentencing, taking into account the specific circumstances of each case. By reducing the sentence for the firearms offence, the court recognised the mitigating factors and provided a sentence that was proportionate to the actual risk posed by the appellant. This case serves as a reminder to courts that excessive sentences can be adjusted to ensure fairness and proportionality in criminal justice.

Orders