R v Prideaux - [2009] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 691 of 2008

THE QUEEN
	v
WILLIAM PRIDEAUX

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JUDGES	ASHLEY, NEAVE JJA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 August 2009
DATE OF JUDGMENT	28 August 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 193
JUDGMENT APPEALED FROM	R v Prideaux (Unreported, County Court of Victoria, Judge Wodak, 10 June 2008)

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CRIMINAL LAW – Sentence – Appellant pleaded guilty to trafficking of various drugs of dependence and possession of various drugs of dependence – New evidence – Whether appellant unable to receive medical treatment in custody – Whether double punishment – Whether sentence manifestly excessive – Whether trial judge erred in sentencing outside the scope of the presentment – Appeal allowed – Appellant re-sentenced

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Galbally Rolfe

ASHLEY JA:

For the reasons given by Neave JA, I would allow the appeal and would re-sentence the appellant as her Honour proposes. I wish to say something additional, however, about one aspect of the material placed before this Court.

It appears to me that in early October 2008 the appellant in substance frustrated the attempt by the authorities to have his knee condition re-assessed with a view of determining whether surgery was necessary. Further – (1) no satisfactory material was placed before this Court of the appellant’s alleged subsequent attempts to revisit the matter; (2) so far as the material before this Court disclosed the situation, the appellant’s requests for conservative treatment coincided with the imminence of his s 582 application, and thereafter his appeal; (3) the appellant’s revealed attitude to the conservative treatment which he has been offered has not always been indicative of a man in great distress.

In those circumstances, whilst accepting that the appellant’s knee condition is productive of ongoing pain, I am not persuaded that the magnitude of the pain is such as to constitute it a circumstance significantly mitigating sentence.

NEAVE JA:

Introduction

On 29 May 2008, the appellant, William Francis Prideaux, pleaded guilty to four counts of trafficking in various drugs of dependence and three counts of possessing various drugs of dependence. After hearing a plea in mitigation of sentence, the learned trial judge sentenced the appellant on 10 June 2008 as follows:

Count Offence Term Cumulation

1 Trafficking – ecstasy between 3 August and 13 September 2007 30 months

2 Trafficking – amphetamine
on 17 September 2007 30 months 4 months on count 1 and on all other counts

3 Trafficking – cannabis L between 3 August and 13 September 2007
30 months
4 months on count 1 and on all other counts

4 Possession – ecstasy on 13 September 2007 6 months 1 month on count 1 and on all other counts

5 Possession – amphetamine on 13 September 2007 6 months 2 months on count 1 and on all other counts

6 Possession – cannabis L on…

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 Prideaux

Details

AGLC: R v Prideaux [2009] VSCA 193
Case: [2009] VSCA 193
Decision Date: 28 August 2009

CaseChat Overview and Summary

In the case of R v Prideaux, the appellant stood before the Court of Appeal to challenge the sentence imposed by the trial judge in the Supreme Court. Prideaux had entered a guilty plea to charges of trafficking and possession of various drugs of dependence. The trial judge sentenced Prideaux to a term of imprisonment, which the appellant now sought to appeal on several grounds, primarily focusing on the severity of the sentence and the impact of new evidence regarding his health.

The legal issues central to this appeal were whether the appellant was unable to receive medical treatment in custody, whether the sentence amounted to double punishment, whether the sentence was manifestly excessive, and whether the trial judge erred in sentencing outside the scope of the presentment. Prideaux argued that his health condition rendered the custodial sentence inappropriate and that the sentence imposed was excessively harsh given the mitigating factors.

The Court of Appeal considered the evidence and arguments presented, focusing on the appellant's health issues and the nature of the custodial sentence. The court determined that the appellant's inability to receive adequate medical treatment in custody was a significant factor. Additionally, the court found that the sentence constituted a form of double punishment and was manifestly excessive. The Court of Appeal also held that the trial judge had erred by sentencing outside the scope of the presentment. Consequently, the appeal was allowed, and Prideaux was re-sentenced, taking into account the new evidence and legal principles applied.

The Court of Appeal's final orders included the allowance of the appeal, the re-sentencing of the appellant, and the direction that the new sentence reflect the considerations of the appellant's health and the legal principles that the court had applied in its judgment.

Orders