R v Gates - [2005] VSCA 61

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 159 of 2004

THE QUEEN
	v.
JONATHAN GATES

---

JUDGES:	WARREN, C.J., BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2005
DATE OF JUDGMENT:	23 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 61

---

CRIMINAL LAW – Sentencing – Trafficking in commercial quantity of drug of dependence, pseudoephedrine – 30 kilograms of 80% purity – Offence committed in breach of suspended sentence – Pleas of guilty - Sentence of twelve years’ imprisonment said by judge to represent significant to high discount – Sentence held manifestly excessive – Applicant re-sentenced to ten years’ imprisonment on trafficking count – Cumulation of 12 month’s imprisonment with respect to breach of suspended sentence – Total effective sentence of 11 years’ imprisonment with eight years non-parole period – Drugs, Poisons and Controlled Substances Act 1981, s.71(1) – Sentencing Act 1991, s.31(6).

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Victoria Legal Aid

WARREN, C.J.:

The facts and circumstances of this appeal against sentence are thoroughly described and set out in the judgment of Eames, J.A. The circumstances of the early plea of guilty and the lack of prior convictions for drug related offences lead me to consider that insufficient weight was given to these factors on the sentence imposed on count 1. I regard the sentence on that count, therefore, as manifestly excessive and the sentencing exercise is reinvoked. For the reasons set out in the judgment of Eames, J.A. I would resentence the applicant as proposed in that judgment.

BATT, J.A.:

I gratefully adopt the statement of facts in the reasons of Eames, J.A.

As the maximum custodial penalty of 25 years’ imprisonment shows, trafficking in a commercial quantity of a drug of dependence is a most serious crime, and this was a very serious instance of it, for the trafficking was a substantial business. Moreover, the offending was aggravated by the fact that it was committed during the operational period of a suspended sentence of imprisonment. General deterrence and specific deterrence had to be the principal sentencing purposes. I adopt Eames, J.A.’s references to the material suggesting guarded prospects for rehabilitation. Although the sentence of 12 years’ imprisonment for trafficking in a commercial quantity of pseudoephedrine is heavy, were it not for one group of mitigatory factors I would have held it (and probably the non-parole period of 10 years and 6 months) to be within the range of sentences available to the sentencing judge in the exercise of his discretion and, thus, not manifestly excessive. (I do not consider that the total restoration of the two year sentence of imprisonment that had been suspended or the cumulation of one year of that sentence was manifestly excessive. If the total effective sentence was manifestly excessive or infringed the principle of totality the fault lay in the sentence on count 1.)

I turn to 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 Gates

Details

AGLC: R v Gates [2005] VSCA 61
Case: [2005] VSCA 61
Decision Date: 23 March 2005

CaseChat Overview and Summary

The matter before the court involved an individual, Gates, who was charged with trafficking in a commercial quantity of a drug of dependence, specifically pseudoephedrine. The court was tasked with determining an appropriate sentence for the offence, which involved 30 kilograms of 80% purity pseudoephedrine. The defendant had previously breached a suspended sentence, which also needed to be addressed in the sentencing. Gates pleaded guilty to both the trafficking charge and the breach of the suspended sentence. The primary legal issue for the court was to determine an appropriate sentence for the trafficking charge, taking into consideration the significant discount applied by the original sentencing judge and the necessity to balance the punishment with the deterrence of such offences.

The court considered various factors in determining the sentence, including the gravity of the offence, the quantity of the drug involved, and the fact that the offence was committed in breach of a suspended sentence. The court noted that the original sentence of twelve years' imprisonment was considered by the judge to represent a significant to high discount. However, the court found this sentence to be manifestly excessive and, therefore, set it aside. The court re-sentenced Gates to ten years' imprisonment for the trafficking charge, cumulating this with a sentence of 12 months' imprisonment for the breach of the suspended sentence, resulting in a total effective sentence of 11 years' imprisonment with an eight-year non-parole period. The court applied relevant sections of the Drugs, Poisons and Controlled Substances Act 1981 and the Sentencing Act 1991 in reaching its decision.

The final orders of the court were that Gates be sentenced to ten years' imprisonment for the trafficking charge, with a non-parole period of eight years. Additionally, a sentence of 12 months' imprisonment for the breach of the suspended sentence was to be cumulated with the trafficking sentence, resulting in an effective total sentence of 11 years' imprisonment with an eight-year non-parole period. The court's decision reflects the need to balance the severity of the offence with appropriate deterrence while considering the discount applied by the original sentencing judge.

Orders