R v Orton
[2006] VSCA 261
•30 November 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 154 of 2006
| THE QUEEN |
| v. |
| JASON ORTON |
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JUDGES: | CALLAWAY and REDLICH, JJ.A. and SMITH, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 November 2006 | |
DATE OF ORDERS: | 3 November 2006 | |
DATE OF JUDGMENT: | 30 November 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 261 | |
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Criminal law – Sentence appeal – Trafficking methylamphetamine and MDMA – Erroneous findings as to quantities trafficked – Resentenced to total effective sentence of two years’ imprisonment suspended for 217 days already served.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S.M. Cooper | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr A.J. Palmer | Lethbridges |
CALLAWAY, J.A.:
As Smith, A.J.A. explains, the Court made orders in this appeal on 3rd November 2006. I joined in those orders for substantially the same reasons as his Honour.
REDLICH , J.A.:
I also joined in the orders made by this Court substantially for the reasons given by Smith, A.J.A.
SMITH, A.J.A.:
History of the matter
On 25 September 2005, the appellant, Jason Orton, pleaded guilty in the County Court to the following counts:
Count 1- Trafficking methylamphetamine between 3 May 2003 and 6 November 2003
Count 2- Trafficking MDMA between 3 May 2003 and 6 November 2003
Count 3- Possessing cannabis on 6 November 2003
The maximum penalty for each of counts 1 and 2 is 15 years’ imprisonment. The maximum penalty for count 3 is five penalty units.
On 8 March 2006, the appellant was presented in the County Court at Melbourne for plea and sentence. On 11 May 2006 the appellant was sentenced as follows:
Count 1- Trafficking methylamphetamine - two years, one-year suspended for three years
Count 2- Traffic MDMA -- two years, a one-year suspended for three years
Count 3- Possess Cannabis -- fined $150
The result of the sentences on counts 1 and 2 was that there was a total effective sentence of two years’ imprisonment of which one year was suspended for three years. His honour declared that 48 days pre-sentence detention be reckoned as time already served.
Leave to appeal was granted on 7 July 2006.
On 3 November 2006 the appeal was allowed for reasons to be published later. The appellant was again sentenced to be imprisoned on each of counts 1 and 2 for 2 years, to be served concurrently, but the Court ordered that all but 217 days of that sentence be suspended for an operational period of 3 years beginning on 11 May 2006. The 217 days reflected the pre-sentence detention and 11 May 2006 was the day on which the appellant was sentenced in the County Court. Those orders did not affect the sentence passed on count 3 or the other orders that were made below.
I set out below my reasons for joining in the above orders.
The appeal
Five grounds of appeal are stated in the Full Statement of Grounds filed 7 August 2006. It is sufficient to refer to two of them -- Grounds 4 and 5. They are as follows
"4.The learned sentencing judge erred in holding that the appellant did not take issue with the estimated amount of drugs he had trafficked in.
5.The learned sentencing judge erred in his findings as to the quantity of drugs trafficked by the appellant."
Ground 4 relates to the following finding made by the learned sentencing judge
"In the notice of additional evidence of David Sharpe, the police informant, he estimates from the intercepts that you trafficked in 491 g of amphetamine and 26 g of ecstasy. Mr Gwynn, in the course of his submission, stated that he took no issue as to these estimated amounts".
The Crown accepted that, while the appellant did not question the calculation arrived at by David Sharpe " per se", the appellant did take issue with some of the items listed and with the total figure. The position taken below and on appeal by Orton was that a more accurate figure for actual transactions involving amphetamines would have been less than half of 491 grams. Counsel for the prosecution accepted that that was the position taken by the appellant before the learned sentencing judge and did not challenge the argument in the appeal.
The finding by his Honour was significant in that it was relied on by him in forming his view about the extent of the trafficking engaged in by the appellant. Counsel for Orton had argued that the purchases that Orton made were used by him and a limited circle of some 10 to 12 friends to whom he on-sold and that he did not seek customers; he was just supplying a service to his friends. His Honour stated that he had considerable doubt as to whether the class of customers was so confined and said he was satisfied that he was attempting to enrich himself through sales. He referred to a telephone conversation between the appellant and Stephen Kavanagh in which he said they discussed the purchase price of 5,000 ecstasy tablets. His Honour’s discussion concluded with the quoted paragraph. Read in context, it appears to be part of the basis for his conclusion that the appellant was engaged in serious trafficking for profit.
Ground 5 relates to passages early in his Honour’s reasons. His Honour stated the following as to count 1
"It is difficult to accurately determine the quantity of drugs which you trafficked in, overall, during this period [3 May 2003 and 30 August 2003] and I am satisfied beyond reasonable doubt from the depositional material that in so far as count 1 is concerned, the telephone intercepts disclose a trafficking in methylamphetamine in a total weight of 91 grams, excluding the 6400 tablets I will refer to over that period."
As to count 2 he stated
"I am satisfied beyond reasonable doubt that total quantity is 90 grams, again excluding the 6400 tablets I will refer to”.
The prosecution accepted that the quantity of 90 grams identified by his Honour is not supported by the evidence. At the most, a quantity of 26 grams could be supported by the evidence. Considerable uncertainty relates to the reference to the 6400 tablets and counsel could not resolve that uncertainty.
The Crown accepted that error had, therefore, been demonstrated in respect of counts 1 and 2. Grounds 4 and 5 having been made out, the appeal was allowed. It became then necessary to re-sentence the appellant.
Re-sentencing
The appellant was born on 5 September 1973 and is now aged 33 years. He has no prior convictions.
No issue is taken by the appellant with the terms of imprisonment imposed - two years’ imprisonment on each of counts 1 and 2. Counsel for the appellant, however, submitted that the terms of imprisonment should have been wholly suspended.
The relevant sentencing considerations and the evidence relating to them was discussed by his Honour in his reasons. It became necessary in re-sentencing the appellant to consider the gravity of the offences and, for that purpose, to come to a conclusion as to the nature and extent of the trafficking relevant to counts 1 and 2. It was unnecessary to revisit the other relevant sentencing considerations or the findings of his Honour in relation to them. They have not been challenged. Those same considerations and facts, however, needed to be examined in the light of any findings made as to the nature and extent of the trafficking.
The principal evidence on that issue is contained in the telephone intercepts. Plainly, the appellant was negotiating for the purchase of amphetamines and MDMA for himself. He was also negotiating with a view to obtaining drugs to pass on to others. The intercepts also record the discussion on a few occasions of possible transactions involving large quantities of drugs. For example, on 29 August 2003[1] the appellant is recorded discussing a possible transaction in which he would play a role bringing a buyer and seller together. The buyer wanted 5,000 and the appellant thought that there was someone with “2,000” in hand. On 30 August 2003[2] the appellant is recorded discussing arranging, again as intermediary, a purchase for Kavanagh of 5,000 tablets. The language may have been intended to disguise the fact that the appellant was in fact one of the participants, but that cannot be established. Otherwise, however, it was common ground that the transactions in which the appellant actually purchased drugs were for modest quantities -- for example, 100 or 200 tablets of amphetamines.
[1]Calls No 2337 and 2403.
[2]Call No 2423.
This put a different complexion on the gravity of the offences in counts 1 and 2. When considered with the mitigating circumstances which were established before his Honour, a larger suspension of those sentences was, in my view, required. In all the circumstances, I came to the conclusion that the appellant should again be sentenced to a term of imprisonment of two years and that in each instance all but 217 days of that imprisonment should be suspended. No argument was directed to changing the period for which the sentences should be suspended. I came to the conclusion that that period should remain at three years. I also concluded that the other orders mentioned above should be made and that the sentence passed on count 3 and the other orders that were made in the court below should not be affected.
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