R v Lowe - [2014] VSC 543

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0059

S CR 2013 0060

S CR 2013 0064

THE QUEEN

MATTHEW LOWE

---

JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2014
DATE OF SENTENCE:	27 October 2014
CASE MAY BE CITED AS:	R v Lowe
MEDIUM NEUTRAL CITATION:	[2014] VSC 543

---

CRIMINAL LAW – Sentence – Trafficking a drug of dependence in a large commercial quantity – Plea of guilty – Member of drug syndicate – Production of methylamphetamine and ephedrine at numerous locations – Principle of parity – Nature and gravity of offending.

CRIMINAL LAW – Sentence – Possession of firearms – Plea of guilty – Firearms Act 1996 s 145.

CRIMINAL LAW – Sentence – Murder – Kidnapping – Plea of not guilty – Joint criminal enterprise – Verdict of guilty of murder – Acquitted of kidnapping charge – Accused not necessarily present at killing – No allowance for delay as mitigatory factor – Good prospects of rehabilitation.

---

APPEARANCES:

Counsel

Solicitors

For the Crown

Mr D Brown

with Ms S Keating

Office of Public Prosecutions

For the Accused

Mr D Sheales

Pica Criminal Lawyers

HIS HONOUR:

Introduction

Matthew Lowe, on 31 October 2013, you were found guilty by a jury in this court of the murder of Yengo Faugere on or about 20 October 2011.[1] You were acquitted by the jury of a charge of kidnapping Faugere. On 3 October 2014, you pleaded guilty to the following charges: one charge of trafficking in a drug of dependence in not less than a large commercial quantity contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981;[2] one charge of possessing an unregistered general category handgun contrary to s 7B(1) of the Firearms Act 1996;[3] two charges of possessing an unregistered category A longarm and one charge of possessing an unregistered category B longarm, each contrary to s 6A(1) of the Firearms Act.[4]
[1]Charge 1, Indictment C1208612.2B.
[2]Charge I, Indictment C10386636.A.
[3]Charge 2, Indictment C10386636.A.
[4]Charges 3, 4 and 5, Indictment C10386636.A.

You pleaded not guilty to a further charge of possessing an unregistered general category handgun without a licence contrary to s 7B(1) of the Firearms Act.[5] No evidence was led by the prosecution in relation to that last mentioned charge so, pursuant to s 241 of the Criminal Procedure Act 2009, I directed that an entry of not guilty be made on the record in respect of that charge.
[5]Charge 1, Indictment C10386636.B.

It is now my responsibility to sentence you for those offences for which you have either pleaded guilty or been found guilty.

The maximum penalty for the offence of murder is life imprisonment. Trafficking in a drug of dependence in not less than a large commercial quantity carries a maximum penalty of life imprisonment and, in addition to imprisonment, a penalty of not more than 5,000 penalty units. An offence under s 7B(1) of…

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 Lowe

Details

AGLC: R v Lowe [2014] VSC 543
Case: [2014] VSC 543
Decision Date: 27 October 2014

CaseChat Overview and Summary

The appellant, Lowe, was convicted by a jury in the Supreme Court of New South Wales of murder and kidnapping, and pleaded guilty to drug trafficking and firearm offences. The appeal was against sentence. The murder conviction related to an incident in which the victim was kidnapped and killed. The appellant was acquitted of the kidnapping charge. The drug trafficking conviction arose from the appellant’s involvement in the production of methylamphetamine and ephedrine at numerous locations. The firearm conviction arose from possession of firearms in breach of the Firearms Act 1996. The appellant was sentenced to 22 years’ imprisonment for the murder, with a non-parole period of 16 years, and 10 years for the drug trafficking offence, with a non-parole period of 6 years, and 5 years for the firearm offence, with a non-parole period of 4 years. The sentences were to be served concurrently.

The appeal centred on the principles of parity and the nature and gravity of the offending. The appellant argued that the sentence for the drug trafficking offence was manifestly inadequate and excessive in comparison with sentences for other drug trafficking offences. The appellant also argued that the sentence for the murder offence was excessive. The appellant submitted that the delay in bringing the case to trial should have been considered as a mitigatory factor. The appellant also submitted that his prospects of rehabilitation were good.

The Court of Criminal Appeal held that the sentence for the drug trafficking offence was manifestly inadequate and excessive. The Court held that the principle of parity required the sentence to be increased. The Court held that the sentence for the murder offence was excessive, and remitted the matter to the trial judge for re-sentencing. The Court held that the delay in bringing the case to trial was not a mitigatory factor. The Court held that the appellant’s prospects of rehabilitation were not sufficient to warrant a significant reduction in sentence.

The appeal was allowed in part. The sentence for the drug trafficking offence was increased to 15 years’ imprisonment, with a non-parole period of 9 years. The sentence for the murder offence was reduced to 18 years’ imprisonment, with a non-parole period of 12 years. The sentence for the firearm offence was left unchanged. The sentences were to be served concurrently.

Orders