R v McEwen; R v McMillan - [2005] VSCA 202

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 166 of 2004

THE QUEEN

NATHAN JAMES McEWEN

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No. 146 of 2004

THE QUEEN
v.
JOHN McMILLAN

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No. 256 of 2004

THE QUEEN
v.
BOSCO SAVICI

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No. 246 of 2004

THE QUEEN
v.
JOSE CARLOS MORAIS

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JUDGES:	BUCHANAN and VINCENT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2005
DATE OF JUDGMENT:	16 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 202

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Appeal – Criminal law – Drug offences – Applications for leave to appeal from sentences imposed – Multiple applicants – Totality – Parity – Manifest excess – Formal error on presentment – Applications dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr M. Gamble

Mr S. Carisbrooke,
Acting Solicitor for
Public Prosecutions

For the Applicant McMillan

For the Applicant McEwen

For the Applicant Morais

For the Applicant Savici

Mr M.J. Croucher

Mr C.B. Boyce

Mr L.C. Carter

Slades & Parsons

Robert Stary & Associates

Victoria Legal Aid
(Nicholas Goodenough)

Hale & Wakeling

BUCHANAN, J.A.:

I agree with Cummins, A.J.A, for the reasons he has stated, that the applications for leave to appeal against sentence should be refused.

VINCENT, J.A.:

I agree that, for the reasons advanced by Cummins, A.J.A, the applications for leave to appeal against sentence should be dismissed.

CUMMINS, A.J.A.:

These are applications by four applicants for leave to appeal from sentences imposed upon them in the County Court, following pleas of guilty by each of the applicants to counts of drug offences.

Each of the first three applicants pleaded guilty on 29 April 2004 on separate presentments before His Honour Judge Robertson. The fourth applicant pleaded guilty on 9 August 2004 before His Honour Judge Strong.

The first applicant, Nathan James McEwan, now aged 30 years, pleaded guilty to two counts: that at Melton on 15 October 2002 he possessed a drug of dependence namely methylamphetamine (Count 1); and that at Ballarat on 17 October 2002 he trafficked in a drug of dependence namely methylamphetamine. He admitted a number of prior convictions. The learned sentencing Judge directed that a psychological report be provided in relation to the applicant. That having been done, on 21 June 2004 His Honour convicted the applicant on both counts and sentenced the applicant on Count 1 to one month’s imprisonment and on Count 2 to two years’ imprisonment. He directed that the sentence on Count 2 be suspended as to one year for a period of three years. A declaration as to 38 days’ pre-sentence detention was made.

The applicant McEwan, by noticed filed on 5 July 2004 and substituted by notice filed on 25 February 2005, applies for leave to appeal against the sentence on

Count 2 upon the ground that the sentence is manifestly excessive (ground 1); and by notice filed on 28 February 2005 that the sentence is manifestly disparate with the sentences imposed upon his co-offenders (three of whom are present applicants) (ground 2); and that…

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

Case: [2005] VSCA 202
Decision Date: 16 August 2005

CaseChat Overview and Summary

In the case of R v McEwen and R v McMillan, the applicants sought leave to appeal against sentences imposed following their convictions for drug-related offences. The applicants argued that their sentences were excessive and disproportionate to the crimes committed, and that there was a manifest error in the way their charges were presented. The applications were heard by the court of appeal, which was tasked with determining whether the sentences were appropriate and whether there were any procedural errors in the presentation of the charges.

The court considered the principles of sentencing, particularly focusing on the concepts of totality, parity, and manifest excess. It examined whether the sentences were excessive when considered in their totality, whether they were disproportionate when compared to sentences for similar offences, and whether there was a manifest error in the way the charges were presented. The court also assessed whether any errors were formal and whether they had a material impact on the applicants' rights.

The court found that the sentences imposed were within the range of appropriate penalties for the crimes committed and that there was no manifest error in the way the charges were presented. It concluded that the sentences were not excessive and that any perceived disproportionality was not sufficient to warrant a departure from the general principles of sentencing. The court further determined that any procedural errors were not material and did not affect the fairness of the proceedings. Consequently, the applications for leave to appeal were dismissed.

The court did not grant leave to appeal and upheld the original sentences imposed by the lower court. The applicants' arguments regarding the severity of the sentences and the formal error in the charge presentation were not found to be compelling enough to warrant a review of the sentences. The decisions of the lower court were affirmed, and the applicants' appeals were rejected.

Orders