R v D'Brass & Ortillo - [2002] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 382 of 2000
No. 391 of 2000

THE QUEEN

MATTHEW JOHN D'BRASS

SHERWIN ZAMUDIO ORTILLO

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JUDGES:	WINNEKE, P., BATT, J.A., O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 March 2002
DATE OF JUDGMENT:	15 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 39	First Revision 1 May 2002

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CRIMINAL LAW - Sentencing - Heroin trafficking - Giretti type - Offenders in mid-twenties, but one with prior like convictions and other on other charges - 5 years' and 5 years 3 months' imprisonment each with a 4 year non-parole period not manifestly excessive - Sentences erroneously recorded - County Court to correct.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Cahill	Director of Public Prosecutions (Cth.)
For the Applicant D'Brass	Mr D. Dann	Mulcahy, Mendelson & Round
For the Applicant Ortillo	Mr G. Thomas	Victoria Legal Aid

WINNEKE, P.:

I will invite Batt, J.A. to deliver the first judgment in these applications .

BATT, J.A.:

The applicants, Matthew John D'Brass and Sherwin Zamudio Ortillo, were arrested by Australian Federal Police officers on 30 March 2000 and charged with various offences against s.233B(1)(ca) of the Customs Act 1901 (Cth.) and s.71(1) of the Drugs, Poisons and Controlled Substances Act (which I shall call "the Drugs Act"), in each case in relation to heroin. The applicant Ortillo was charged also with a passport offence and a summary offence. On 25 August 2000 the committal mention in relation to both applicants at the Magistrates' Court at Melbourne was adjourned to 4 September 2000 to allow negotiations to take place with a view to both applicants entering guilty pleas at committal to a reduced number of charges on an agreed summary of facts. The magistrate ordered that a summary of facts be prepared and served by the informant by 30 August and that the applicants respond by 1 September. On 4 September, following a preliminary examination which proceeded by way of "hand-up brief", the applicants were committed for trial in the County Court at Melbourne on one count of trafficking in a drug of dependence, namely, heroin, between 15 December 1999 and 30 March 2000, contrary to s.71(1) of the Drugs Act. Ortillo was also committed on one count of possessing an Australian passport issued to another contrary to s.9A(d) of the Passports Act 1938 (Cth.), and the summary charge against him of possessing a prescribed weapon, namely a butterfly knife, contrary to the then s.5(1)(d) of the Control of Weapons Act 1990 was adjourned sine die. The remaining charges were withdrawn and marked "struck out" prior to committal upon the indication of the pleas of guilty to the "between dates" trafficking in heroin and upon the tendering of the agreed summary of facts as an exhibit at the committal. The applicants entered pleas of guilty to the counts on which they were committed.

On 15 November 2000 a joint indictment/presentment containing the counts on which the applicants had been committed was…

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 D'Brass & Ortillo

Details

AGLC: R v D'Brass and Ortillo [2002] VSCA 39
Case: [2002] VSCA 39
Decision Date: 15 March 2002

CaseChat Overview and Summary

In the matter of R v D'Brass & Ortillo, the defendants were convicted of heroin trafficking and sentenced to imprisonment by the County Court of Victoria. The issue before the court was whether the sentences imposed were manifestly excessive, considering the defendants' ages, criminal histories, and the nature of their offences. The court was also required to address the clerical error in recording the sentences, which had inadvertently omitted the non-parole periods.

The court recognised that the defendants, while in their mid-twenties, had varying criminal backgrounds. One had previous convictions for similar offences, and the other had been convicted on different charges. Despite these factors, the court held that the sentences of five years and five years and three months respectively, with a four-year non-parole period for each, were not manifestly excessive. The court emphasised that the sentences took into account the defendants' personal circumstances and the need for general deterrence. The error in recording the sentences was noted as a clerical mistake, and the court directed that the County Court should rectify the records accordingly.

Given the court's findings, the sentences were deemed appropriate, and the recording errors were to be corrected by the County Court. The court did not deem the sentences to be manifestly excessive and affirmed the penalties imposed on the defendants. The final orders of the court were that the sentences should remain as imposed but with the correction of the non-parole periods in the records.

Orders