Power v the Queen - [2010] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0539

MICHAEL GAVIN POWER
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and HARPER JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2010
DATE OF JUDGMENT:	10 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 139
JUDGMENT APPEALED FROM:	R v Power (Unreported, County Court of Victoria, Judge Duggan, 26 February 2008)

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CRIMINAL LAW – Sentencing – Whether manifestly excessive – Trafficking in commercial quantity of ecstasy – Other drug and weapons offences – Nature of appellant’s role in offending – Sentence of 3 years and 9 months’ imprisonment on trafficking count and total effective sentence of 4 years 3 months’ imprisonment within range – Mitigating factors – Non-parole period reduced from 3 years to 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Stephen Andrianakis & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1 I invite Hansen AJA to deliver the first judgment.

HANSEN AJA:

This is an appeal against sentence by Michael Gavin Power who, following a plea in the County Court on 26 February 2009, was sentenced to imprisonment as follows:

(a) On Count 1, of possessing a general category unregistered hand gun – eight months.

(b) On Count 2, of trafficking in a drug of dependence, namely MDMA, in not less than a commercial quantity – 45 months.

(c) On Count 3, of possession of a drug of dependence, namely methylamphetamine – three months, and

(d) On Count 4, of possession of a drug of dependence, cannabis – one month.

In addition, on a summary offence of possessing a prohibited weapon, namely a samurai sword, he was sentenced to one month's imprisonment. With a direction that five months of the sentence imposed on Count 1 be served cumulatively upon the sentence imposed upon Count 2, a total effective sentence of four years and two months' imprisonment was ordered with a minimum term of three years' imprisonment before the appellant was eligible for parole.

The appellant contends that in all the circumstances of the case, the sentence imposed on Count 2 is manifestly excessive with the consequence that the total effective sentence was manifestly excessive. It is also contended that the non-parole period is manifestly excessive. Hence there is no issue as to the sentences imposed on Counts 1, 3 and 4 and the summary charge.

Each offence occurred on the same day, 10 April 2007. On that day at approximately 5 am, police executed a search warrant at the premises where the appellant lived and when he was then asleep. The police were looking for two others, not the appellant.

The above counts arise out of what the police found at the premises. As to them, the hand gun the subject of Count 1 was fully loaded with six .38 calibre rounds and various drugs were found on the premises which were duly examined and tested. The…

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 Power v the Queen

Details

AGLC: Power v the Queen [2010] VSCA 139
Case: [2010] VSCA 139
Decision Date: 10 June 2010

CaseChat Overview and Summary

Power v the Queen involved a defendant who had been convicted of trafficking in a commercial quantity of ecstasy, along with other drug and weapons offences. The appellant sought a review of the sentence imposed, arguing that it was manifestly excessive. The case was heard by the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the nature and circumstances of the offending, as well as the appellant's role in the commission of the crimes. The court needed to determine if the sentence was disproportionate to the gravity of the offences and if it warranted a reduction in the non-parole period. The appellant argued that the sentence was too severe, considering various mitigating factors, while the prosecution contended that the sentence was appropriate given the circumstances.

The court carefully reviewed the sentencing principles applicable to the case and considered the appellant's role in the offending, which involved the trafficking of a significant quantity of ecstasy, as well as other related drug and weapons offences. The court acknowledged that the sentence imposed was within the range typically seen for such offences but recognised that the appellant's role and the mitigating factors presented warranted a reduction in the non-parole period. The court concluded that the original non-parole period of three years was excessive and reduced it to two years, while affirming the overall sentence as appropriate.

The final orders of the court were that the sentence of three years and nine months’ imprisonment for the trafficking count and the total effective sentence of four years and three months’ imprisonment were upheld. However, the non-parole period was reduced from three years to two years, reflecting the court's consideration of the mitigating factors presented by the appellant.

Orders