JUDGES:	WINNEKE, A.C.J., ORMISTON and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 and 10 April 2001
DATE OF JUDGMENT:	15 June 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 87

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Criminal law – Sentencing – Drug trafficking – Common design – Supplying drug of dependence to a child – Limited relevance of offender’s youth – Principles applicable to fixing non-parole periods – Relevance of scale and cost of police investigation – Proof of sentencing facts – Cumulation – Parity – Male and female offenders – Drugs, Poisons and Controlled Substances Act 1981, ss. 71, 71B.

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APPEARANCES:

Counsel

Solicitors

For the Crown

For the Applicant Harkness
For the Applicant Dang
For the Applicant Gnjatovic
For the Applicant Brooks

Ms. S. Pullen

Mr. P.J. Hannebery
Mr. M. Croucher
Mr. D.A. Dann
Mr. T.E. Wraight

Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions

Balmer & Associates Pty.
Valos Black & Associates
Balmer & Associates Pty.
Amad & Amad

WINNEKE, A.C.J.:

I have read the reasons for judgment of Callaway, J.A. I agree, for the reasons which his Honour assigns, that these four applications should be disposed of in the manner which his Honour proposes.

ORMISTON, J.A.:

In this matter I have had the benefit of reading the detailed and careful reasons in the draft judgment of Callaway, J.A. In relation to the applicants Brooks, Gnjatovic and Harkness, I agree, substantially for the reasons stated by his Honour, that those applications should be dealt with in the way he suggests.

As to the applicant Dang, I regret to say, with great respect, that I am not satisfied, from the reasons stated in Callaway, J.A.’s judgment, nor for any reasons put forward in argument by his counsel, that there were any errors in the sentencing judge’s findings or in his reasons for sentencing the applicant that a different sentence should have been passed. The sentences imposed on all the offenders were modest, especially having regard to the systematic way in which it was clear that heroin was being peddled by them in the Ballarat area. Although there may not have been large sums of moneys involved, certainly by comparison with other trafficking rings, the vicious nature of the trade and its appalling effects on the community have been sufficiently often stated for it not to need repeating.

To my way of thinking, with respect, it has not been shown adequately that the learned sentencing judge was wrong in his assessment of the evidence relating to the applicant Dang. It is easy to look at particular pieces of evidence and the inferences which they might separately justify or not justify, but the sentencing judge’s task is to look at the whole of the evidence from the array of material presented to him for that purpose, which includes the whole of the depositions…

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 Harkness

Details

AGLC: R v Harkness [2001] VSCA 87
Case: [2001] VSCA 87
Decision Date: 15 June 2001

CaseChat Overview and Summary

In the case of R v Harkness, the defendant, Harkness, was convicted for drug trafficking activities involving the supply of a drug of dependence to a child. The case was heard and determined in an Australian court. The central issue in the case was the determination of an appropriate sentence for Harkness, considering the nature and circumstances of the offence, alongside the principles governing the setting of non-parole periods.

The court was tasked with interpreting and applying the relevant sentencing principles under the Drugs, Poisons and Controlled Substances Act 1981, specifically sections 71 and 71B. The primary legal issues included assessing the relevance of Harkness's youth in the sentencing process, the weight to be given to the scale and cost of the police investigation, and the proof of sentencing facts related to the offence. Furthermore, the court needed to decide whether the sentencing should reflect principles of parity between male and female offenders and if there were any factors that warranted cumulation of sentences.

The court found that while youth is generally a mitigating factor, its relevance was limited in this case due to the severity of the offence. The scale and cost of the police investigation were considered in the context of the overall harm caused by the offence. The proof of sentencing facts was established based on the evidence presented. The court applied the principles of parity, ensuring that the sentencing was consistent with similar cases. The court decided not to cumulate sentences as the offences were closely related in time and nature. Ultimately, the court set a non-parole period that reflected the seriousness of the crime and the need for deterrence and protection of society.

Orders