R v La Mude - [2001] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 315 of 2000

THE QUEEN
	v.
KELLY LOUISE LA MUDE

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JUDGES:	PHILLIPS and BATT, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2001
DATE OF JUDGMENT:	20 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 33

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CRIMINAL LAW - Sentencing - Trafficking in amphetamines for three months - Low level trading - Plea of guilty - Extraordinary personal circumstances of the offender - Significant separation illness of young daughter - Sentence of four and a half years' imprisonment manifestly excessive - Two and a half years' substituted, with two years suspended.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Solicitor for Public Prosecutions
For the Applicant	Mr. J.P. Brett	Access Law

PHILLIPS, J.A.:

This is an application for leave to appeal against sentence. The applicant is now 37 years old. She was only 35 at the time of the offending, between

14 January and 12 April 1999. On 5 October 2000 the applicant pleaded guilty in the County Court to a presentment containing one count, that of trafficking in a drug of dependence, namely, amphetamine. This is an offence under s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 and it carries a maximum penalty of 15 years' imprisonment.

A related offender, one Masoe, was presented with the applicant before the same judge. Masoe was presented on one count each of possession of a drug of dependence, trafficking in a drug of dependence and handling stolen goods. She was sentenced to be imprisoned for nine months, the term to be wholly suspended for the period of one year. Three alleged co-offenders, Mousley, Merrett and James, are yet to be dealt with by the court. Masoe's offending, save for the handling of stolen goods, arose in the same context as the applicant's offending, but the pair were not directly involved in any joint conduct.

The applicant admitted previous convictions. On 13 March 1985, more than 15 years ago now, she was convicted in the Magistrates' Court for theft and fined $500. More recently, on 30 January 1996, she was convicted again in the Magistrates' Court for theft and this time fined $200. On 15 April 1996 she came before the Magistrates' Court on three charges, two of theft and one of being in possession of a drug of dependence. The three charges were found proved but no conviction was recorded and the matter was adjourned for 12 months.

With such previous matters admitted, a plea was made on behalf of the applicant by counsel for, in substance, a suspended sentence. The applicant's sister gave evidence about the applicant's circumstances and in particular the care of her two children. Three exhibits were tendered, being a report from a psychologist, one Margaret Morrissey; a reference from the applicant's employer for whom the applicant had been working on a part-time basis, suggesting that she still had the chance to become a full-time employee if she worked hard; and…

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 La Mude

Details

AGLC: R v La Mude [2001] VSCA 33
Case: [2001] VSCA 33
Decision Date: 20 March 2001

CaseChat Overview and Summary

In the case of R v La Mude, the appellant stood convicted for trafficking in amphetamines over a period of three months, a criminal activity at the lower end of the spectrum in terms of scale and involvement. The case was heard in a higher court, where the focus was on the appropriateness of the sentence imposed on the appellant. The appellant had entered a plea of guilty, and the court was tasked with determining whether the sentence of four and a half years' imprisonment was commensurate with the nature and circumstances of the offence and the personal circumstances of the offender.

The primary legal issue before the court was whether the sentence of four and a half years' imprisonment was manifestly excessive given the appellant's low-level involvement in the drug trade and the extraordinary personal circumstances, particularly the significant separation illness of his young daughter. The court had to weigh the seriousness of the offence against the personal mitigating factors presented. This included considering the impact of the sentence on the appellant's family, especially his role as a primary caregiver for his daughter during her illness.

The court concluded that the original sentence was indeed manifestly excessive. The reasoning was that the appellant's involvement in the drug trade, while illegal, was at a relatively low level, and the personal circumstances of significant family responsibility presented a strong case for leniency. The court substituted the original sentence with one of two and a half years' imprisonment, with two years of that sentence being suspended, thereby significantly reducing the impact on the appellant's personal and family life. This decision was made in recognition of both the gravity of the offence and the exceptional personal circumstances that warranted a more compassionate approach in sentencing.

Orders