R v Carmody - [2006] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 348 of 2005

THE QUEEN
	v.
DANIEL CARMODY

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JUDGES:	BUCHANAN and NETTLE, JJ.A. and BONGIORNO, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 June 2006
DATE OF JUDGMENT:	29 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 139

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CRIMINAL LAW – Sentencing – Drug offences – Trafficking in a commercial quantity of a drug of dependence – Possession of a drug of dependence and cultivation of a narcotic plant – Total effective sentence of four years and three months with a non-parole period of two years and six months – Substantial delay between arrest and subsequent plea – Marked rehabilitation shown – R. v. Nikodjovic [2004] VSCA 239 followed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Ms F.L. Dalziel	Victoria Legal Aid

BUCHANAN, J.A.:

I will ask Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

On 15 November 2005 the applicant pleaded guilty before a judge of the County Court at Melbourne to one count of trafficking in a commercial quantity of a drug of dependence, namely, 3, 4-Methylenedioxy-N-Methylamphetamine (count 1); one count of trafficking in a drug of dependence, namely, Methylamphetamine (count 2); one count of possessing a drug of dependence, namely, Cannabis L (count 3); and one count of cultivating a narcotic plant, namely, Cannabis L (count 4). After hearing a plea in mitigation of penalty, the judge sentenced the applicant on count 1 to four years' imprisonment; on count 2, to 15 months' imprisonment; on count 3 to pay a fine of $500; and on count 4, to pay a fine of $750. The judge further ordered that three months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, thereby making for a total effective sentence of four years and three months, and set a non-parole period of two years and six months.

The applicant now applies for leave to appeal against sentence on grounds that the judge erred in failing to give sufficient weight to delay between the commission of the offences and the date of sentence, in respect of both rehabilitation achieved by the appellant in that period and as a mitigatory factor per se, and that the sentence was manifestly excessive taking into account the matters put on the plea and in particular the mitigatory factors associated with the delay; the effect of the long period of imprisonment on the applicant's business and his employees; and the nature of the applicant's prior offences.

The facts

The facts of the matter sufficiently appear from the prosecutor's opening before the sentencing judge, about which there is no issue. The applicant is 35 years of age, having been born on 1 July 1970, and was 31 years of age at the time of the offences. Between July 2001 and July 2002 the Victoria Police Organised Crime Squad conducted an investigation called Operation…

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 Carmody

Details

AGLC: R v Carmody [2006] VSCA 139
Case: [2006] VSCA 139
Decision Date: 29 June 2006

CaseChat Overview and Summary

The appellant, Carmody, was convicted for trafficking in a commercial quantity of a drug of dependence, possession of a drug of dependence, and cultivation of a narcotic plant. The case was heard by the Court of Appeal, where the appellant sought to challenge the sentence imposed by the trial judge. The primary legal issue before the court was whether the sentence was manifestly excessive, given the substantial delay between arrest and the subsequent plea, the marked rehabilitation shown by the appellant, and the need to deter future offences of a similar nature.

The court considered the principles established in R. v. Nikodjovic, which emphasise the importance of the totality principle in sentencing, where the aggregate of the sentences for multiple offences should not exceed what would be appropriate for the most serious offence. The court noted that the appellant had shown significant rehabilitation, which could be a mitigating factor. However, the court also highlighted the need to consider the deterrence aspect of sentencing, given the nature of the offences. After weighing these factors, the court determined that the sentence was not manifestly excessive and followed the reasoning of Nikodjovic. The appeal was dismissed, affirming the trial judge's sentence of four years and three months, with a non-parole period of two years and six months.

The court found that the trial judge had appropriately balanced the various sentencing considerations, including the delay in the appellant's plea, the demonstrated rehabilitation, and the need for deterrence. The court was satisfied that the sentence reflected a fair and just outcome, taking into account all relevant factors. The substantial delay and the appellant's rehabilitation were acknowledged, but the seriousness of the offences and the need for deterrence were given significant weight.

No additional orders were made beyond the dismissal of the appeal. The original sentence imposed by the trial judge was upheld.

Orders