R v Englisch - [2009] VSCA 71

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 911 of 2007

THE QUEEN
	v
ANTON ENGLISCH

---

JUDGES:	MAXWELL ACJ, BUCHANAN and VINCENT JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2009
DATE OF JUDGMENT:	8 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 71

---

CRIMINAL LAW – Sentence – Importation of a commercial quantity of ecstasy – Whether the trial judge erred in failing to give sufficient weight to the appellant’s offer to cooperate – Parity – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms W Abraham with Mr C B Boyce	Commonwealth Director of Public Prosecutions
For the Appellant	Mr M J Croucher	Rob Melasecca

MAXWELL ACJ,
BUCHANAN JA
VINCENT JA:

The appellant pleaded guilty in the County Court at Melbourne to the importation of a commercial quantity of a controlled drug known as MDMA, or ecstasy, at Brisbane, on 20 November 2006.

After hearing a plea in mitigation of penalty, Judge Higgins, on 19 November 2007 imposed upon him a term of imprisonment of seven years and six months with a non-parole period of five years for this offence.[1]
[1] The appellant had one prior court appearance. On 13 May 2004 he was convicted of one count of possessing a prohibited import and one of attempting to possess a prohibited import for which he was sentenced by Judge Hogan to an effective term of three years, to be released after 18 months upon entering into a recognizance to be of good behaviour for 18 months and to pay a pecuniary penalty of $15,000. The prohibited import was ecstasy.

The appellant has contended before us that in imposing this sentence –

Ground 1:      The learned judge erred:
·(a)            in concluding that ‘there [was] no indication that [the appellant’s offer to co-operate with the police] meant that [he] would give evidence against [his] co-accused when he stands trial’;
·(b)            in failing to give sufficient weight to the appellant’s offer of co-operation.

Ground 2: The sentence infringes the principles of parity among co-offenders when regard is had to the sentences imposed (subsequently) on the co-offender Hernan Andrade.

The background

The co-offender to whom reference is made in these grounds, Andrade, pleaded guilty before Judge Wilmoth, on 9 April 2008, for his part in the importation and was, on 15 April 2008 sentenced to seven years’ imprisonment. Her Honour also

revoked a recognizance order earlier made by her on 23 July 2004,[2] directing that he serve the remainder of the period then outstanding (18 months). Six months of that term was to be served cumulatively upon the sentence of seven years and a non-parole of five years was fixed.

[2]On that occasion, Andrade pleaded guilty to one count of acting and abetting the importation of a prohibited import (cocaine). He was sentenced to imprisonment for four years to be released after two years and six months on entering a recognizance to be of good behaviour for two years.

The circumstances relating to the commission of the…

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 Englisch

Details

AGLC: R v Englisch [2009] VSCA 71
Case: [2009] VSCA 71
Decision Date: 8 April 2009

CaseChat Overview and Summary

The case of R v Englisch involved the appellant, who was convicted of importing a commercial quantity of ecstasy. The matter was heard in the Court of Appeal, where the appellant sought to challenge the severity of the sentence imposed. The crux of the appeal was whether the trial judge had erred in not adequately considering the appellant's offer to cooperate with law enforcement authorities as a mitigating factor during sentencing. The appellant argued that the judge's failure to sufficiently weigh this offer resulted in an unjust and excessive sentence.

The central legal issue before the court was whether the trial judge's sentencing decision was flawed due to an inadequate consideration of the appellant's offer to cooperate. The court needed to determine if the trial judge had correctly applied the principles of sentencing, particularly in relation to mitigating factors such as cooperation with authorities. Additionally, the court had to assess whether the sentence imposed was proportionate to the offence and whether it complied with the principle of parity, ensuring that similar offences attract similar sentences.

In delivering the judgment, the court found that the trial judge had indeed considered the appellant's offer to cooperate but had determined that it did not sufficiently mitigate the gravity of the offence. The court held that the trial judge had exercised proper discretion in evaluating the mitigating factors and that the sentence imposed was proportionate and in line with the principle of parity. Consequently, the appeal was dismissed, and the original sentence was upheld. The court emphasised that while cooperation could be a mitigating factor, it was not the sole determinant and had to be balanced against the seriousness of the offence and other relevant circumstances.

Orders