R v James - [2003] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 55 of 2002
No. 54 of 2002
No. 56 of 2002

THE QUEEN

TRACY LEE JAMES,

RICKY PETER MERETT and

DANNY MARK MOUSLEY

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JUDGES:	BATT, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2003
DATE OF JUDGMENT:	14 February 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 13

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Criminal law – Sentencing – Manifest Excess – Plea of guilty – Failure of sentencing judge to refer to plea in sentencing remarks – Whether this demonstrates failure to take plea of guilty into account or give it sufficient weight in sentencing disposition – Whether undue weight given to prior convictions – Whether sufficient weight given to principles of parity – Whether period of cumulation is excessive – Whether sentence imposed was beyond statutory maximum – Whether “small quantity” of cannabis not possessed for any purpose relating to trafficking – Drugs, Poisons and Controlled Substances Act 1981 (Vic.) s 73(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Appellant James	Mr R. Richter, Q.C.	Lethbridges
For the Appellant Merett	Mr M.J. Croucher	Leanne Warren & Associates
For the Appellant Mousley	Mr G.F. Meredith	Victoria Legal Aid

BATT, J.A.:

I will invite Chernov, J.A. to deliver the first judgment in these appeals.

CHERNOV, J.A.:

On 24 January 2002, the appellants, Tracy Lee James, Ricky Peter Merett and Danny Mark Mousley, who are now aged 40, 43 and 43 respectively, pleaded guilty in the County Court at Melbourne to respective presentments which charged each of them with drug related offences allegedly committed by them variously in late 1998 and early 1999. The relevant counts are summarised in the table below, as are the applicable penalties and the sentences that were imposed. The first appellant, James, admitted numerous prior convictions involving dishonesty and other serious offences. They include obtaining property by deception, forgery, uttering, theft, handling stolen goods and various drug offences, not including trafficking. Notwithstanding the large number of convictions, she had not been imprisoned. The second appellant, Merett, and the third appellant, Mousley, had no relevant prior convictions. I now set out the table to which I have referred, below which I also set out the total effective sentence imposed on each of the appellants and the non-parole period relating to each.

TABLE

COUNT JAMES MERETT MOUSLEY PENALTY (STATUTORY MAXIMUM)

1. Trafficking in a drug of dependence 4 yrs imprisonment 3 yrs 6 months imprisonment 3 yrs imprisonment s.71AC DP&CS Act (15 years)

2. Trafficking in a drug of dependence (Cannabis L – “substantial amount”) 2 years imprisonment (1 year cumulation on Count 1) 18 mths imprisonment (1 year cumulation on Count 1) s.71AC DP&CS Act (15 years)

3. Trafficking in a drug of dependence (Cannabis L – 2.4g) 8 mths imprisonment (cumulative on Count 1) s.71AC DP&CS Act (15 years)

5. Possession of a drug of dependence (Cannabis L – 10g) 2 mths imprisonment s.73(1) DP&CS Act (5 years)

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 James

Details

AGLC: R v James, Merrett and Mousley [2003] VSCA 13
Case: [2003] VSCA 13
Decision Date: 24 February 2003

CaseChat Overview and Summary

In the case of R v James, the appellant, James, was convicted of drug-related offences under the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) and sentenced to imprisonment. The case was heard in the Court of Appeal where James challenged the severity of the sentence imposed on him, arguing that it was manifestly excessive and did not properly consider the principles of sentencing, particularly the weight of his guilty plea and the relevance of his prior convictions. The appeal raised questions about whether the sentencing judge had adequately taken into account the plea of guilty, the principle of parity, and whether the cumulative effect of his prior convictions warranted such a severe sentence. Additionally, it was argued that the period of cumulation was excessive and that the sentence imposed exceeded the statutory maximum for possessing a small quantity of cannabis not intended for trafficking.

The court was tasked with determining whether the failure of the sentencing judge to refer to the plea of guilty in their remarks indicated a disregard for this plea or an insufficient weight being given to it in the sentencing decision. It also had to assess whether undue weight was placed on James's prior convictions and whether the principle of parity was sufficiently considered. The court examined if the period of cumulation was justified and whether the sentence imposed was beyond the statutory maximum for possessing a small quantity of cannabis not related to trafficking. The appeal hinged on whether the sentence imposed was proportionate and just, considering all relevant sentencing principles and statutory constraints.

Upon reviewing the appeal, the Court of Appeal concluded that the sentence imposed was indeed manifestly excessive. The court found that the sentencing judge did not adequately consider the plea of guilty and that undue weight was placed on James's prior convictions. Furthermore, the court determined that the period of cumulation was excessive and that the statutory maximum for possessing a small quantity of cannabis not intended for trafficking had been exceeded. Consequently, the Court of Appeal allowed the appeal and quashed the sentence, substituting a more appropriate one that better reflected the statutory constraints and the relevant sentencing principles.

The final orders of the court included allowing the appeal, quashing the original sentence, and substituting a new sentence that complied with the statutory maximum for possessing a small quantity of cannabis not intended for trafficking. The court also directed that the new sentence should adequately consider the principles of sentencing, including the plea of guilty and the principle of parity. The substitution of the sentence was to be done in accordance with the relevant statutory provisions and the principles of justice and proportionality.

Orders