CRIMINAL LAW – Appeal – Sentence – Standard sentence scheme – Large commercial quantity of methylamphetamine – Trafficking by possession for sale – Possessing unregistered firearm – Trafficking sentence 15 years – Total effective sentence 16 years and 5 months – Non-parole period 10 years – Plea of guilty – Relevance of standard sentence – Whether manifestly excessive – Quantitative hierarchy of trafficking offences – Legislative intent – Quantity trafficked almost four times large commercial quantity – Possession as part of commercial enterprise – Trafficking for profit – Sentence within range – New evidence – Deportation not being contested – Leave to appeal refused – Drugs, Poisons and Controlled Substances Act 1981 s 71 – Sentencing Act 1991 ss 5(2), 5A, 5B – Gregory (a pseudonym) v The Queen [2017] VSCA 151, Brown v The Queen (2019) 59 VR 462.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr O P Holdenson QC
Stary Norton Halphen
For the Respondent
Mr C B Boyce QC
Ms A Hogan, Solicitor for Public Prosecutions
MAXWELL P BEACH JA:
Summary
The applicant pleaded guilty to a series of drug and firearms charges, the most serious of which was a charge of trafficking in a large commercial quantity (‘LCQ’) of methylamphetamine. The maximum penalty for that offence is life imprisonment.
On the trafficking charge, the applicant was sentenced to 15 years’ imprisonment. The other sentences ranged between 7 days’ and 18 months’ imprisonment. With limited cumulation, the total effective sentence was 16 years and 5 months’ imprisonment. A non-parole period of 10 years was fixed.
The applicant seeks leave to appeal against the sentence on a number of grounds. Some of the grounds concern the sentencing judge’s application of the ‘standard sentence’ provisions, which were applicable because LCQ trafficking is a ‘standard sentence offence’. (The standard sentence for the offence is 16 years’ imprisonment.[1]) Other grounds contend that insufficient weight was given to certain mitigating factors, in particular the applicant’s pleas of guilty. Those grounds fall to be considered with the remaining grounds, which contend that the sentence was manifestly excessive.
For reasons which follow, we would refuse leave to appeal. Although the sentencing decision was made before this Court in Brown v The Queen[2] clarified how the standard sentence provisions are to be applied, there was no material error in her Honour’s approach. As to manifest excess, the sentence of 15 years’ imprisonment for LCQ trafficking was within range. The amount trafficked represented almost four times the LCQ for methylamphetamine and, as the respondent submitted, the sentence of 15 years is consistent with what this Court said…
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.
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AGLC
Quah v The Queen [2021] VSCA 164
Case
[2021] VSCA 164
Decision Date
CaseChat Overview and Summary
The appellant, Quah, was convicted in the County Court of Victoria for trafficking by possession of a large commercial quantity of methylamphetamine, possessing an unregistered firearm, and possessing a firearm while trafficking. The appellant appealed against his sentence of 15 years for the trafficking offence, which was enhanced by his possession of an unregistered firearm, resulting in a total effective sentence of 16 years and 5 months with a non-parole period of 10 years. The appeal was dismissed by the Court of Appeal.
The central issue in the appeal was whether the sentence imposed by the County Court was manifestly excessive. The appellant argued that the standard sentence for trafficking was 11 years' imprisonment, and that his sentence of 15 years was manifestly excessive given the quantity of drugs involved. The appellant submitted that the quantity of methylamphetamine trafficked was almost four times the large commercial quantity, and that this warranted a higher sentence. The appellant also argued that the possession of the unregistered firearm was not relevant to the trafficking offence, and that the sentence should be reduced accordingly.
The Court of Appeal held that the sentence imposed by the County Court was not manifestly excessive. The court noted that the standard sentence for trafficking by possession of a large commercial quantity of methylamphetamine was 11 years' imprisonment, but that the sentencing judge had taken into account the quantitative hierarchy of trafficking offences and the legislative intent behind the sentencing provisions. The court held that the appellant's sentence was within the range of sentences that could be imposed for the offence, and that the possession of the unregistered firearm was relevant to the appellant's offending. The court also noted that the appellant had pleaded guilty and that there was no evidence that the appellant was not a suitable candidate for deportation.
The Court of Appeal dismissed the appeal and refused leave to appeal to the High Court. The appellant's sentence of 15 years for the trafficking offence, enhanced by his possession of an unregistered firearm, was affirmed. The appellant's total effective sentence of 16 years and 5 months, with a non-parole period of 10 years, was also affirmed.