R v E D B - [2008] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 17 of 2007

THE QUEEN
	v
EDB

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JUDGES:	VINCENT, NETTLE and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2008
DATE OF JUDGMENT:	14 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 18

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Criminal Law – Sentencing – One count of trafficking in a drug of dependence – One count of theft – Sentence imposed on count 1 incorrectly imposed as count 2 and vice versa – Sentencing discretion reopened – Appeal allowed – Appellant re-sentenced to a total effective sentence of 25 months with a non-parole period of 15 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Leanne Warren & Assoc

VINCENT JA:

I will invite Nettle JA to deliver the first judgment.

NETTLE JA:

On 12 September 2006 the appellant pleaded guilty before a judge of the County Court to one count of trafficking in a drug of dependence, namely, 3, 4, Methylenedioxy- N-Methylamphetamine (MDMA) (Count 1) and one count of theft (Count 2). After hearing a plea in mitigation of penalty on 15 January 2007, on 1 February 2007 the judge sentenced the appellant on Count 1 to a term of imprisonment of two years and nine months and on Count 2 to a term of imprisonment of nine months. The judge further ordered that three months’ of the sentence imposed on Count 2 be served cumulatively on the sentence imposed on Count 1, making for a total effective sentence of three years’ imprisonment, and his Honour suspended 12 months’ of the total effective sentence for a period of two years. In the result, the appellant was required to serve an immediate term of imprisonment of two years.

The appellant now appeals against sentence with leave, on grounds:

1) That the sentence was manifestly excessive.

2) In respect of Count 2, that the judge erred by using a figure inflated by a large taxation component when determining the seriousness of the offence, rather than a figure which reflected the loss to the victim.

3) That the judge erred by imposing a sentence which offended the principle of parity when regard is had to the sentence imposed on the appellant’s co-offenders.

4) That the judge failed properly to take into account delay between the commission of the offence and sentence.

5) That the judge erred by failing properly to record the sentences referable to each count, such error vitiating the order for cumulation.

6) That a miscarriage arose by reason that the judge was not properly informed of the extent of the appellant’s assistance to the police.

7) That the judge erred by failing properly to take into account the extent of the appellant’s assistance to the police.

Ground 5

It is convenient to begin with Ground 5. In his report to the Court, the judge has disclosed that he did indeed make an error by imposing in respect…

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 E D B

Details

AGLC: R v E D B [2008] VSCA 18
Case: [2008] VSCA 18
Decision Date: 14 February 2008

CaseChat Overview and Summary

The appellant, E D B, appealed against the sentences imposed by the County Court for two offences: trafficking in a drug of dependence and theft. The Court of Appeal reviewed the matter to determine if the sentences imposed were appropriate and correctly aligned with the charges. The appellant argued that the sentences were incorrectly imposed on the wrong counts and sought a re-sentencing. The Court of Appeal was required to consider whether the sentences were indeed misapplied and, if so, to what extent this affected the overall sentencing outcome. Additionally, the court had to evaluate the principles of sentencing to ensure that the final sentences reflected the nature and circumstances of the offences, as well as the offender's culpability and the need for deterrence and rehabilitation.

The Court of Appeal determined that the sentences were indeed incorrectly imposed on the wrong counts. The court found that the sentence for trafficking in a drug of dependence was more severe than that for theft, suggesting a misalignment in the sentencing approach. The court considered the appellant's offending history, the nature of the crimes, and the appropriate balance between punishment and rehabilitation. The Court of Appeal concluded that the original sentences did not properly reflect the true severity of each offence and that the sentencing discretion should be reopened. The court then re-sentenced the appellant, imposing a total effective sentence of 25 months with a non-parole period of 15 months, which it deemed appropriate given the nature of the offences and the need for an effective sentence.

The Court of Appeal allowed the appeal and re-sentenced the appellant, setting aside the original sentences. The court imposed a total effective sentence of 25 months with a non-parole period of 15 months, ensuring that the sentences were correctly aligned with the respective offences. The decision highlights the importance of accurate sentencing and the need for courts to carefully consider the nature and severity of each offence when determining an appropriate sentence. The final orders included the re-sentencing of the appellant and the setting aside of the original sentences.

Orders