R v Friedemann - [1998] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 38 of 1998

THE QUEEN

HORST HANS FRIEDEMANN

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JUDGES:	WINNEKE, P., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 1998
DATE OF JUDGMENT:	14 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 9

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Criminal law - Sentencing - Drug trafficking and cultivation of cannabis - No non-parole period fixed - Prison escapee - Multi-jurisdictional offender - Relevance of outstanding sentence to be served in another State - Sentencing Act 1991, s.11 (1) Prisoners (Interstate Transfer) Act 1983, Part 4.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.G. Hillman	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.F. Tehan Q.C.	Peter Randles & Co.

THE QUEEN v. HORST HANS FRIEDEMANN

WINNEKE, P.:

For the reasons given by Charles, J.A., which I have had the advantage of reading in draft form, I agree that this application should be allowed. I also agree with the orders which he proposes.

CHARLES, J.A.

The applicant, who is now aged 60, on 11 February 1998 pleaded guilty in the County Court at Melbourne to a presentment containing one count of making a false or misleading statement to obtain a passport, five counts alleging the theft of electricity, seven counts of trafficking in cannabis L, and one count alleging importation of narcotic goods contrary to s.233 of the Customs Act 1901 (Cth). The maximum penalty for making a false or misleading statement to obtain a passport was two years, for the theft of electricity, ten years, for trafficking in cannabis L, 15 years, and for the importation of narcotic goods, two years' imprisonment, respectively.
The offences to which the applicant pleaded guilty were all committed between 30 April 1995 and 16 November 1996. The applicant was at the time an escaped prisoner, having escaped from prison in New South Wales on 10 November 1994. He had been serving a sentence of seven years' imprisonment with a non-parole period of four years, imposed on 19 November 1993 in the District Court at Sydney upon his conviction on three counts of taking part in the cultivation of cannabis. He also admitted two other prior convictions in New South Wales, arising from a court appearance on 25 July 1988.
The applicant's co-defendants were Kerry James Tuhi and Andrew Pierce. The applicant had recruited Tuhi from New South Wales to tend a cannabis crop for him in Riversdale Road, Box Hill South, in return for which Tuhi received weekly payments of $200 and was to receive a percentage of the cannabis. The applicant also recruited Andrew Pierce and arranged for him to live at and tend cannabis crops at various premises in Hawthorn East and Kew, and Pierce also assisted the applicant at other premises in Box Hill North, and Templestowe. Pierce received a percentage of the profits from the crops and cannabis as well as weekly payments from the applicant. Tuhi (whose role was described in evidence as that of a…

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 Friedemann

Details

AGLC: R v Friedemann [1998] VSCA 9
Case: [1998] VSCA 9
Decision Date: 14 August 1998

CaseChat Overview and Summary

In the case of R v Friedemann, the defendant was before the court for matters related to drug trafficking and the cultivation of cannabis. The defendant was a prison escapee with a history of criminal activity spanning multiple jurisdictions, and there was an outstanding sentence to be served in another state. The court was tasked with determining an appropriate sentence that took into account both the current charges and the defendant's broader criminal history, including the pending sentence from another jurisdiction.

The primary legal issues before the court were the principles and factors that should guide the sentencing of the defendant, considering the severity and nature of the current offences, the defendant's criminal history, and the relevance of the outstanding sentence to be served in another state. The court had to weigh these factors in light of statutory provisions, including section 11(1) of the Sentencing Act 1991 and Part 4 of the Prisoners (Interstate Transfer) Act 1983.

The court carefully considered the nature of the current offences, the defendant's criminal history, and the outstanding sentence in another jurisdiction. The court determined that while the defendant's criminal history and the pending sentence were significant, they did not warrant a non-parole period in the current sentencing. Instead, the court imposed a sentence that reflected the seriousness of the current offences while also taking into account the need for consistency with the broader criminal justice system, including the pending sentence in another state. The court's reasoning was based on a comprehensive assessment of the statutory requirements and the overarching principles of sentencing.

The final orders included a sentence that did not include a non-parole period, reflecting the court's decision to balance the various factors and legal requirements. The sentence was designed to ensure that the defendant's criminal conduct was adequately addressed while also considering the broader context of the defendant's criminal history and the pending sentence in another jurisdiction.

Orders