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R v Duncan

R v Duncan

Case [2006] VSCA 239 13 November 2006

Sentencing discretion

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 307 of 2005
	v.
ADRIAN MICHAEL DUNCAN

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JUDGES:	VINCENT and NETTLE, JJ.A. and KING, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 2006
DATE OF JUDGMENT:	13 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 239

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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 – Whether judge erred in treating MDMA as a more serious drug than Cannabis – R. v. Pidoto andO’Dea [2006] VSCA 185 considered – Whether judge erred in maximum penalty applicable to trafficking in a large commercial quantity – Ramifications of forfeiture order made – Cumulation – Parity – As between co-offenders – Sentencing discretion re-opened, but applicant re-sentenced to a total effective sentence of eight years and 10 months with a non-parole period of four years and five months 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 P.G. Priest, Q.C. with Mr M.J. Croucher	Hale & Wakeling

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 17 October 2005 the applicant, after pleading guilty, was convicted in the County Court at Melbourne of one count of trafficking in a drug of dependence (Cannabis L) (Count 1); one count of trafficking in a large commercial quantity of a drug of dependence (3, 4 methylenedioxy-N-methylamphetamine (”MDMA”))[1] (Count 2), and one count of possession of a drug of dependence (MDMA) (Count 3). Following a plea in mitigation of penalty, the judge sentenced him on Count 1 to a term of imprisonment of 20 months; on Count 2, to a term of imprisonment of eight years and a fine of $3,500; and on Count 3, to a term of imprisonment of two months, and the judge cumulated 10 months of the sentence imposed on Count 1 on the sentence imposed on Count 2, thereby making for a total effective sentence of eight years and 10 months, and ordered that the applicant serve not less than four years and five months’ imprisonment before being eligible for parole.
[1]Commonly known as “ecstacy”.

The applicant now applies for leave to appeal against sentence on grounds that:

1)The judge failed to have regard to the likelihood of automatic forfeiture of the applicants interest in real estate and a motor car pursuant to the Confiscation Act 1997 (Ground 1).
2)The judge made a mistake as to the maximum penalty applicable to the offence of trafficking in a large commercial quantity of a drug of dependence (Ground 3).
3)The judge erred in treating MDMA as a more harmful drug than cannabis and thus the offence of trafficking in MDMA as a more serious offence…

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 Duncan

Details

AGLC: R v Duncan [2006] VSCA 239
Case: [2006] VSCA 239
Decision Date: 13 November 2006

CaseChat Overview and Summary

In the matter of R v Duncan, the defendant was convicted of trafficking in a large commercial quantity of a drug of dependence, trafficking in a drug of dependence, and possession of a drug of dependence. The dispute arose concerning the sentencing of the defendant and the applicability of certain legal principles in the context of the offences. The case was heard in the Court of Appeal.

The primary legal issues before the court were whether the trial judge erred in treating MDMA as a more serious drug than cannabis when determining the defendant's sentence, and whether the trial judge erred in the maximum penalty applicable to trafficking in a large commercial quantity of a drug of dependence. The court also considered the ramifications of a forfeiture order made and the principles of cumulation, parity, and sentencing discretion in relation to co-offenders.

The court found that while the trial judge had erred in treating MDMA as a more serious drug than cannabis, this did not impact the overall sentence imposed on the defendant. The court also determined that the trial judge had correctly applied the maximum penalty for trafficking in a large commercial quantity of a drug of dependence. The ramifications of the forfeiture order were found to be irrelevant to the sentencing issue, and the principles of cumulation, parity, and sentencing discretion in relation to co-offenders were appropriately considered. The court ultimately concluded that the defendant's sentence should remain unchanged, with a total effective sentence of eight years and ten months, with a non-parole period of four years and five months.

The final orders of the court were that the appeal was dismissed, and the defendant's sentence remained as originally imposed by the trial judge.

Orders