R v Dominique - [2009] VSCA 133

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 549 of 2008

THE QUEEN
	v
FRANCOIS DOMINIQUE

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JUDGES:	MAXWELL P and KELLAM JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2009
DATE OF JUDGMENT:	11 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 133
JUDGMENT APPEALED FROM:	The Queen v Dominique (unreported, County Court of Victoria, Judge Chettle, 14 February 2008).

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CRIMINAL LAW – Sentencing – Trafficking in drugs of dependence – Relevance of quantity of drug trafficked – Parity – Manifest excess – Sentence of 12 months’ imprisonment for trafficking eight grams of cannabis manifestly excessive – Other trafficking sentences within range – Resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Silbert SC with Mr B F Kissane	Mr C Hyland, Solicitor for the Office of Public Prosecutions
For the Appellant	Mr M Croucher	Brugman Mellas

MAXWELL P:

I agree that the appeal should be allowed to the limited extent identified by Kellam JA, and the appellant be resentenced as his Honour proposes. Subject to what follows, I would do so for the reasons which his Honour gives.

In relation to count 1, counsel for the appellant drew attention to the decision of this Court in R v Koumis.[1]One of the applications there dealt with (that of Barry Jones) concerned a sentence of five years, imposed following a plea of guilty to one count of trafficking in heroin.[2] Mr Jones had trafficked in approximately 320 grams of heroin. Like the appellant, he had been engaged in trafficking to feed his own drug addiction. The Court of Appeal reduced his sentence to four and a half years’ imprisonment.
[1](2008) 18 VR 434; [2008] VSCA 84.
[2]See The Queem v Koumis [2008] VSCA 84 [23].

Counsel for the present appellant pointed out that the 320 grams of heroin trafficked by Mr Jones represented 64 per cent of a commercial quantity of heroin. (The commercial quantity is 500 grams where the heroin is mixed with another substance). In the present case, the appellant was sentenced on the basis that he had purchased 123 grams of amphetamine, of which 41 grams had been on-sold. He had used the remaining 82 grams himself. The commercial quantity of amphetamine (when it is mixed with another substance) was 1.25 kg. That being so, what the appellant received constituted less than 10 per cent of a commercial quantity, and what he on-sold represented a little over three per cent of a commercial quantity.

Counsel for the appellant argued that the sentence of three years and six months imposed for trafficking amphetamine – when only three per cent of a commercial quantity was sold – could not be reconciled with the sentence of four years and six months imposed by this Court on Mr Jones for selling 64 per cent of a commercial quantity of heroin. Counsel noted that the scheme of penalties for drug trafficking is quantity-based, as this Court pointed out in R v Pidoto & O’Dea,[3] and…

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 Dominique

Details

AGLC: R v Dominique [2009] VSCA 133
Case: [2009] VSCA 133
Decision Date: 11 June 2009

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Dominique, the High Court of Australia was called to review the sentence handed down to the respondent for the trafficking of eight grams of cannabis. The respondent, Dominique, appealed the decision of the lower court, which imposed a 12-month imprisonment sentence, arguing that the sentence was manifestly excessive. The primary focus of the appeal was to determine whether the sentence was disproportionate in light of the relatively small quantity of drugs involved and to examine the principle of parity in sentencing for drug trafficking offences.

The court was required to assess whether the sentence of 12 months' imprisonment was appropriate given the small amount of cannabis trafficked. The principles of parity and manifest excess were key in determining the appropriateness of the sentence. The court considered the relevance of the quantity of the drug trafficked and whether the sentence imposed was disproportionate compared to other cases of trafficking similar substances. The court also examined whether the sentence was within the range of sentences typically imposed for similar offences.

In delivering its judgment, the High Court noted that the sentence imposed was indeed manifestly excessive. The court held that while the trafficking of any quantity of drugs is a serious offence, the imposition of a 12-month imprisonment term for the trafficking of only eight grams of cannabis was disproportionate. The court observed that other cases involving the trafficking of similar substances had resulted in sentences that were significantly lower. The court found that the principle of parity demanded that Dominique's sentence should be aligned with those of other offenders who had committed similar offences. Consequently, the High Court set aside the original sentence and ordered that Dominique be resentenced.

The High Court did not provide a specific new sentence but directed that the resentencing be conducted with due consideration of the principles of parity and manifest excess, ensuring that the new sentence would be proportionate to the offence committed.

Orders