R v Bidmade - [2009] VSCA 90

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 525 of 2008
THE QUEEN	v
ANTHONY JAMES BIDMADE

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JUDGES:	VINCENT and NETTLE JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 2009
DATE OF JUDGMENT:	14 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 90

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CRIMINAL LAW – Conviction – Trafficking and possession of drug of dependence – Whether act of possession part and parcel of trafficking.

CRIMINAL LAW – Sentencing – Applicant sentenced to a total effective sentence of two years and 10 months’ imprisonment with a non-parole period of two years on one count of trafficking in methyl amphetamine, one count of possessing methyl amphetamine – Whether judge gave sufficient weight to applicant’s youth and plea of guilty – Manifest excessiveness – Appeal allowed in part – Applicant re-sentenced to a total effective sentence of two years and seven months with a non-parole period of 21 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr C G Mandy	Slades & Parsons Solicitors

VINCENT JA:

I have read the judgment of Nettle JA and agree that the application for leave to appeal against conviction on Count 3 be allowed and the conviction on that count quashed. I also agree that leave to appeal against sentence be granted and allowed, that the sentences imposed by the court below be set aside and the applicant re-sentenced as ordered by the Court.

NETTLE JA:

This is an application for leave to appeal from a total effective sentence of two years and 10 months’ imprisonment with a non-parole period of two years imposed on the applicant on pleading guilty in the County Court at Geelong to one count of trafficking in methyl amphetamine (Count 1), one count of criminal damage (Count 2), one count of possessing methyl amphetamine (Count 3) and one count of possessing cannabis (Count 4).

The judge sentenced the applicant on Count 1 (trafficking amphetamine) to two years and six months’ imprisonment, on Count 2 (criminal damage) to one months’ imprisonment, on Count 3 (possession of amphetamine) to three months’ imprisonment and on Count 4 (possession of cannabis) to a fine of $100.00. His Honour directed that the sentences imposed on Counts 2 and 3 be served cumulatively on each other and on the sentence imposed on Count 1 making for the total effective sentence of two years and 10 months’ imprisonment.

There is also an application for leave to appeal against conviction on Count 3, which we granted leave to file out of time, on the ground that the act of possession which comprised Count 3 was one of the acts which constituted the count of trafficking the subject of Count 1.

The circumstances of the offending

In brief substance, the circumstances of the offending are as follows. In

November 2006 police investigated an extensive drug ring which was then operating in the Geelong area. One Steven Dare was identified as the focal…

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 R v Bidmade

Details

AGLC: R v Bidmade [2009] VSCA 90
Case: [2009] VSCA 90
Decision Date: 14 May 2009

CaseChat Overview and Summary

In the case of R v Bidmade, the respondent was convicted of trafficking in and possession of methyl amphetamine, a drug of dependence, by the County Court of Victoria. The primary issue before the court was whether the act of possession was part and parcel of the trafficking, and if so, whether this warranted a specific consideration in the sentencing process. Additionally, the court had to determine whether the sentence imposed was manifestly excessive, particularly in light of the respondent's youth and plea of guilty.

The respondent argued that the act of possession was not an integral part of the trafficking and that the sentence imposed was manifestly excessive. The court examined the nature of the trafficking operation and the role the respondent played in it. It was established that the possession was incidental to the trafficking, and this distinction was crucial for the sentencing considerations. The court also assessed the judge's weighing of the respondent's youth and plea of guilty against the seriousness of the offences.

The court found that while the judge had considered the respondent's youth and plea of guilty, the overall sentence imposed was manifestly excessive. The court was particularly concerned with the non-parole period, which it deemed too long given the circumstances. As a result, the appeal was allowed in part. The respondent was re-sentenced to a total effective sentence of two years and seven months with a non-parole period of 21 months, reflecting a more balanced consideration of all relevant factors.

The court ordered that the respondent be re-sentenced, reducing the non-parole period and the overall sentence, thereby providing a more proportionate punishment that aligned with the principles of sentencing in such cases.

Orders