R v Doherty - [2009] VSCA 93

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 625 of 2008
THE QUEEN	v
CRAIG DOHERTY

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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 93

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

CRIMINAL LAW – Sentencing – Trafficking and possession of a drug of dependence – Applicant sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years and six months – Whether judge erred as to maximum penalty for possession of cannabis – Parity – Cumulation – Applicant re-sentenced to two years and six months’ imprisonment with a non-parole period of 18 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 P J Doyle	Revill & Papa Lawyers

VINCENT JA:

I have read the judgment of Nettle JA and agree that the application for leave to appeal against conviction on Count 20 should be allowed and that the sentence on that count be set aside. I also agree that the application for leave to appeal against sentence be allowed and with the orders proposed by Nettle JA.

NETTLE JA:

This is an application for leave to appeal from a total effective sentence of two years and eight months’ imprisonment with a non-parole period of twenty months imposed on the applicant on pleading guilty in the County Court at Geelong to one count of trafficking in methyl amphetamine (Count 19), one count of possessing amphetamine (Count 20) and one count of possessing cannabis (Count 21).

The judge sentenced the applicant on the count of trafficking amphetamine (Count 19) to two years and six months’ imprisonment, on the count of possession of amphetamine (Count 20) to six months’ and on the count of possession of cannabis (Count 21) to two months’ imprisonment. His Honour ordered that two months of the sentence imposed on Count 20 be served cumulatively on the sentence imposed on Count 19, making a total effective sentence of two years and eight months, and set a non-parole period of 20 months.

There is also an application for leave to appeal against conviction on Count 20, which we granted leave to file out of time, on the ground that the act of possession which comprised Count 20 was one of the acts which constituted the count of trafficking the subject of Count 19.

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 drug ring operating in the Geelong area. An extensive network of people was

involved using mobile telephones to organise the supply and delivery of amphetamine and other drugs. Methyl amphetamine, cannabis, ecstasy, LSD and steroids were all…

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 Doherty

Details

AGLC: R v Doherty [2009] VSCA 93
Case: [2009] VSCA 93
Decision Date: 14 May 2009

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Doherty, the appeal against conviction and sentence was heard in the Supreme Court of Victoria. The appellant was convicted of trafficking in a large commercial quantity of cannabis, and of possession of a drug of dependence, namely cannabis, at the time of his arrest. The appeal challenged both the conviction and the sentence.

The court had to determine whether the act of possession was part and parcel of the trafficking, and if so, whether the appellant should have been convicted of only one offence. The court also had to consider whether the judge erred in calculating the maximum penalty for possession of cannabis, and if the sentence imposed was appropriate.

The court held that the act of possession was indeed part and parcel of the trafficking, and that the appellant should have been convicted of only one offence. The court found that the judge had erred in calculating the maximum penalty for possession of cannabis, which was 12 months’ imprisonment, not 18 months. The court considered the principle of parity, which states that the penalty for possession should not exceed the penalty for supply of the same quantity of the drug. The court also considered the principle of cumulation, which prohibits the cumulation of penalties for possession and trafficking of the same drug. The court re-sentenced the appellant to two years and six months’ imprisonment with a non-parole period of 18 months, which was a reduction from the original sentence.

The appeal against conviction was dismissed, but the appeal against sentence was allowed, and the appellant was re-sentenced.

Orders