R v Dare - [2009] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 538 of 2008
THE QUEEN	v
STEVEN DARE

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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 91

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CRIMINAL LAW – Sentencing – Trafficking and possession of a drug of dependence – Applicant sentenced to a total effective sentence of six years and three months’ imprisonment with a non-parole period of four years and three months – Manifest excessiveness – Parity – Recognition of applicant’s courage and good behaviour – Whether judge took applicant’s personal circumstances sufficiently into account – Application refused – R v Djukic [2001] VSCA 226 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr L C Carter	Robert Stary & Associates

VINCENT JA:

I have read the judgment of Nettle JA and agree that the application should be refused for the reasons given by his Honour.

NETTLE JA:

This is an application for leave to appeal from a total effective sentence of six years and three months’ imprisonment with a non-parole period of four years and three months 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 being a prohibited person possessing an unregistered firearm, namely, an imitation pistol (Count 2), one count of possessing cannabis (Count 3), one count of possessing amphetamine (Count 4), one count of placing persons in danger of serious injury (Count 5), one count of being a prohibited person in possession of an unregistered firearm, namely, a sawn-off rifle (Count 6), one count of trafficking cannabis (Count 7) and one count of trafficking in LSD (Count 8).

The circumstances of the offending

The circumstances of the offending are described in the sentencing judge’s sentencing remarks as follows. Late in 2006 police commenced an investigation into a sophisticated drug ring operating in the Geelong area. An extensive network of people was involved using mobile telephones to organise the supply and delivery of amphetamines and other drugs. Methyl amphetamine, cannabis, ecstasy, LSD and steroids were all trafficked. The applicant was found to be at the centre of the drug ring with several persons involved in supplying him with drugs which he then sold at street level.

Between 4 December 2006 and 10 June 2007 police intercepted over 13,000 telephone calls and SMS messages to mobile telephones operated by the applicant, which he had obtained by using a variant of his name and false addresses. The evidence thus derived established that the applicant trafficked amphetamine on an

almost daily basis throughout that period. Between 22 January 2007 and 2 March 2007 a covert police operative made eight separate drug purchases from the applicant involving in total $1340 of amphetamine. Additionally, between December 2006 and June 2007 mobile telephone intercepts revealed the applicant showing amphetamines…

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 Dare

Details

AGLC: R v Dare [2009] VSCA 91
Case: [2009] VSCA 91
Decision Date: 14 May 2009

CaseChat Overview and Summary

The case of R v Dare involved the applicant, who was sentenced to a total effective sentence of six years and three months’ imprisonment with a non-parole period of four years and three months for trafficking and possession of a drug of dependence. The applicant sought to appeal against the sentence on the basis of its manifest excessiveness, as well as to argue that it was not in parity with sentences imposed in similar cases. The Court of Appeal was tasked with examining whether the sentencing judge had taken the applicant’s personal circumstances sufficiently into account and whether there were any grounds for reducing the sentence.

The legal issues before the Court of Appeal centred on the principles of sentencing for drug trafficking and possession, particularly in relation to the concept of manifest excessiveness and the need for parity in sentencing. The Court had to determine whether the sentence imposed was so disproportionate as to shock the conscience of the court, and whether it was appropriate to consider the applicant’s personal circumstances, including any recognition of their courage and good behaviour during the proceedings. The Court also needed to assess whether the sentence was in line with other sentences handed down in similar cases.

The Court of Appeal found that the sentencing judge had given appropriate consideration to the applicant’s personal circumstances, including the recognition of their courage and good behaviour. However, the Court concluded that the sentence was not manifestly excessive nor was it out of parity with other sentences in similar cases. The Court was satisfied that the sentencing judge had exercised their discretion correctly and had appropriately balanced the need for punishment with the need for rehabilitation. As a result, the application for leave to appeal against the sentence was refused.

In summary, the Court of Appeal upheld the original sentence imposed on the applicant, finding that it was neither manifestly excessive nor out of parity with other sentences in similar cases. The Court emphasised the importance of considering the individual circumstances of each case when determining an appropriate sentence, but ultimately concluded that the sentence in this instance was appropriate and should stand. The appeal was therefore dismissed, and the original sentence remained in place.

Orders