Criminal Law – Sentencing – Trafficking in a drug of dependence – Whether appellant’s drug addiction relevant to sentencing – Question of parity with co-accused – Appeal allowed – Appellant re-sentenced.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr T Gyorffy
Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant
Mr L C Carter
Robert Stary & Associates
VINCENT JA REDLICH JA HABERSBERGER AJA:
At the conclusion of the hearing of this appeal against sentence by the appellant, Craig Lacey, the Court announced that it was of the view that the appeal should be allowed and the appellant re-sentenced. This departure from the course ordinarily adopted was taken because, in view of the decision at which we had arrived, the appellant became eligible for parole immediately. The Court advised that reasons for our decision would be provided in due course. These reasons follow.
On 2 March 2006, the appellant pleaded guilty before the County Court at Melbourne to one count of trafficking, between 4 June and 4 August 2005, in a drug of dependence, namely diacetylmorphine (heroin). The maximum penalty for this offence is 15 years’ imprisonment. After hearing a plea in mitigation of penalty, the learned judge, on 19 May 2006, sentenced the appellant to imprisonment for 4 years, with a non-parole period of 2 years.
The appellant was born on 26 February 1975. He was aged 31 at the time of sentencing. Although the appellant had a stable family upbringing, he left home at 15 so as to be closer to his workplace, where he was employed as a chicken boner. His father worked as a boner in a butcher’s shop. In a report dated 27 September 2005, a consulting psychologist, Warren Simmons, stated that Lacey’s composite IQ score put him at the 4th percentile, meaning that 96% of people would do better than him. He described Lacey as being “in the below average range of intellectual functioning although not within the intellectually disabled range”. Mr Simmons also noted that Lacey had said that, as a child, he had been diagnosed with Attention Deficit Hyperactivity Disorder for which he was placed on medication.
There was evidence, which the learned sentencing judge apparently accepted, that the appellant commenced smoking cannabis at about the age of 13, that he began using heroin and benzodiazepines at the age of 17 and that he had been addicted to heroin since about the age of 20. The appellant has a history of regularly offending since 1992. From 17 previous court appearances, 60 prior convictions have resulted, three of them for trafficking heroin and virtually all of them drug-related in some way. He has been sentenced to several…
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.
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Details
AGLC
R v Lacey [2007] VSCA 196
Case
[2007] VSCA 196
Decision Date
CaseChat Overview and Summary
In the matter of R v Lacey, the appellant, Lacey, was convicted of trafficking in a drug of dependence and was sentenced to a term of imprisonment. Lacey appealed against the sentence, arguing that the sentencing judge had failed to consider the relevance of his drug addiction in determining his sentence and that his sentence was disproportionate to that of his co-accused. The appeal was heard by the Supreme Court of the relevant jurisdiction.
The legal issues before the court were whether the sentencing judge had erred in failing to consider the appellant’s drug addiction and whether the sentence imposed was disproportionate to that of the co-accused. The court noted that the sentencing judge had considered the appellant’s drug addiction but had not given it the weight it deserved. The court also noted that the sentence imposed on the appellant was significantly higher than that of the co-accused, who had a similar criminal history and had played a similar role in the offence.
The court held that the sentencing judge had erred in not giving sufficient weight to the appellant’s drug addiction in determining his sentence. The court also held that the sentence imposed was disproportionate to that of the co-accused. The appeal was allowed, and the appellant was re-sentenced to a term of imprisonment that was more proportionate to that of the co-accused. The court noted that while the appellant’s drug addiction was a relevant factor in determining his sentence, it was not the only factor to be considered. The court also noted that the sentence imposed should be proportionate to the gravity of the offence and the circumstances of the offender.
The court ordered that the appellant be re-sentenced to a term of imprisonment that was more proportionate to that of the co-accused. The court also noted that the appellant’s drug addiction should be considered in determining his sentence, but it was not the only factor to be considered. The court held that the sentence imposed should be proportionate to the gravity of the offence and the circumstances of the offender.