R v Jaross - [2007] VSCA 68

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 115 of 2006

THE QUEEN
	v
DEREK JAROSS

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JUDGES:	MAXWELL, P, EAMES, JA and KELLAM, AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February and 21 March 2007
DATE OF JUDGMENT:	21 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 68

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CRIMINAL LAW – Sentencing – Appeal - Manifest excess - Family hardship – Offer of assistance to authorities - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
The Applicant in person

MAXWELL, P:

I will ask Kellam, AJA to deliver the first judgment.

KELLAM, AJA:

This is an application for leave to appeal against sentence. The application comes before this Court upon the applicant electing to apply for leave under s582 of the Crimes Act 1958, a single judge of appeal having previously refused leave to appeal.

On 23 March 2006, the applicant pleaded guilty before the County Court at Melbourne to one count of trafficking in ecstasy in not less than the applicable commercial quantity (count 1). That count carries a maximum penalty of 25 years' imprisonment. In addition, and at the same time, he pleaded guilty to one count of trafficking in a drug of dependence (methylamphetamine), which offence carries a maximum penalty of 15 years' imprisonment (count 2).

On 6 April 2006, the sentencing judge sentenced the applicant to two years and six months' imprisonment on count 1 and to 12 months' imprisonment on count 2. She directed that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of two years and nine months. A non-parole period of 15 months was fixed and a declaration made regarding eight days pre-sentence detention.

Background Facts

The background facts may be stated briefly. In the course of the year 2003, Victoria Police commenced an investigation into alleged trafficking in various drugs of dependence, which investigation was targeted particularly at one Shane Waters. The method used by police in the course of that investigation included the interception of telephone conversations and text messages on mobile telephones, as well as surveillance and the use of a police covert operative. In September 2003, the

police conducted a number of raids and arrested Shane Waters and the applicant, as well as other persons. The applicant had been introduced previously to Waters by Waters's then girlfriend, Cheryn Osborne.

Count 1 on the presentment is a "rolled-up" Giretti count encompassing five separate transactions in which the applicant was involved between 23 June 2003 and 6 October 2003. The first transaction took place on 23 June 2003, when the applicant made a purchase from Waters of 486 ecstasy tablets at a cost of $20 per tablet - a total cost of $9,720. The second transaction took place on 15 July 2003, when, through Cheryn Osborne, the applicant purchased from Waters 2,000 ecstasy tablets at a cost of $19 per tablet…

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 Jaross

Details

AGLC: R v Jaross [2007] VSCA 68
Case: [2007] VSCA 68
Decision Date: 21 March 2007

CaseChat Overview and Summary

In the case of R v Jaross, the appellant, Jaross, was convicted of a serious criminal offence and was subsequently sentenced to a term of imprisonment. Jaross appealed against the severity of his sentence, arguing that it was manifestly excessive and that the sentencing judge had failed to adequately consider certain mitigating factors. The appeal was heard in the Court of Appeal, which was required to determine whether the sentence imposed was appropriate in all the circumstances. The court had to consider the nature of the offence, the appellant’s criminal history, and the arguments advanced regarding family hardship and his offer of assistance to the authorities.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the appellant's offer of assistance and the impact on his family. The court examined the principles of sentencing, including the need for proportionality and the importance of mitigating factors such as the appellant's offer of assistance to authorities. The court also had to assess whether the trial judge had appropriately considered the appellant's family circumstances and if those circumstances warranted a lesser sentence.

In delivering its judgment, the Court of Appeal held that the sentence imposed by the trial judge was not manifestly excessive. The court found that the trial judge had properly considered the mitigating factors presented, including the appellant's offer of assistance to the authorities, and had given due weight to the seriousness of the offence. The court also concluded that while the appellant's family hardship was a relevant consideration, it did not warrant a significant reduction in the sentence. The appeal was therefore dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders