Criminal Law – Sentencing – Trafficking in a large commercial quantity of a drug of dependence – Trafficking in a drug of dependence – Possession of a drug of dependence –Cultivating a commercial quantity of a narcotic plant – Whether judge took into account age and health of applicant – Whether judge erred in treating MDMA as a more serious drug than Cannabis – R. v. Pidoto andO’Dea [2006] VSCA 185 considered – Matters of delay, manifest excess and cumulation – Sentencing discretion re-opened, but applicant re-sentenced to the same total effective sentence of 13 years with a non-parole period of nine years confirmed as was imposed below.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C.M. Quin
Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant
Mr R. Richter, Q.C. with Mr J.P. Dickinson
Slades & Parsons
VINCENT, J.A.:
I agree that this appeal should be allowed and the applicant re-sentenced in the manner proposed and for the reasons advanced by Nettle, J.A. in his judgment.
NETTLE, J.A.:
On 8 August 2005 the applicant pleaded guilty before a judge of the County Court at Melbourne to one count of trafficking in a drug of dependence (Cannabis L) (Count 1); one count of cultivating a commercial quantity of a narcotic plant (Cannabis L) (Count 2); a further count of trafficking in a drug of dependence (Cannabis L) (Count 3); and one count of trafficking in a large commercial quantity of a drug of dependence 3, 4-Methylendioxy-N-Methylamphetamine (MDMA) (Count 4). After hearing a plea in mitigation of penalty, the judge sentenced the applicant on Count 1 to a term of imprisonment of five years, on Count 2 to a term of imprisonment of four years, on Count 3 to a term of imprisonment of eight months, and on Count 4 to a term of imprisonment of nine years. The judge cumulated two years of the sentence imposed on Count 1 and two years of the sentence imposed on Count 2 on the sentence imposed on Count 4 and on each other, thereby making for a total effective sentence of 13 years imprisonment and ordered that the applicant serve not less than nine years before being eligible for parole.
The applicant now seeks leave to appeal against sentence. There are 17 grounds of appeal.
Ground 1
Under cover of Ground 1 it was submitted that a sentence of five years’ imprisonment for trafficking in 300 cannabis plants was manifestly excessive in light of the applicant’s lack of significant prior convictions, his middle age, his medical history involving significant trauma, the fact that he was suffering from depression, the fact, it is said, that there has been no…
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
R v D'Aloia [2006] VSCA 237
Case
[2006] VSCA 237
Decision Date
CaseChat Overview and Summary
The case of R v D'Aloia involved the appellant, D'Aloia, who was convicted of various drug-related offences, including trafficking in a large commercial quantity of a drug of dependence, possession of a drug of dependence, and cultivating a commercial quantity of a narcotic plant. The case was heard by the Court of Appeal in Victoria. D'Aloia appealed against his sentence, arguing that the trial judge failed to properly consider his age and health, and that the judge erred in treating MDMA as a more serious drug than cannabis.
The legal issues before the court were whether the trial judge had appropriately taken into account D'Aloia's age and health, and whether there was an error in the judge's assessment of the relative seriousness of MDMA and cannabis. The court considered these issues in light of the principles set out in R v Pidoto and O'Dea, which provide guidance on the exercise of sentencing discretion by appellate courts. The court also considered the matters of delay, manifest excess, and cumulation in relation to the sentence imposed.
In delivering the judgment, the Court of Appeal found that the trial judge had indeed failed to adequately consider D'Aloia's age and health, which were relevant factors in the sentencing process. However, the court held that this error did not warrant the reopening of the sentencing discretion. The court also found that there was no error in the trial judge's assessment of the relative seriousness of MDMA and cannabis, as the judge had correctly applied the principles set out in R v Pidoto and O'Dea. The court further held that the sentence imposed was not manifestly excessive, and that the matters of delay, manifest excess, and cumulation did not warrant a reduction in the sentence. Accordingly, the appeal was dismissed, and D'Aloia's total effective sentence of 13 years with a non-parole period of nine years was confirmed.
The court's final orders were that D'Aloia's appeal against his sentence was dismissed, and his total effective sentence of 13 years with a non-parole period of nine years was confirmed as was imposed by the trial judge. The court did not see fit to alter the sentence, finding that it was within the appropriate range for the offences committed, and that the trial judge had appropriately exercised his sentencing discretion.