R v QMN - [2004] VSCA 32

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 34 of 2003

THE QUEEN

QMN

No. 35 of 2003

THE QUEEN

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JUDGES:	VINCENT, J.A., SMITH and O'BRYAN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 February 2004
DATE OF JUDGMENT:	17 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 32

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Criminal law – Sentence – Trafficking in heroin – Disparity between sentences of co-offenders.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr T. Gyorffy

K. Robertson, Solicitor for Public Prosecutions

For the Appellant QMN

For the Appellant WD

Mr M. Croucher

Mr G. Thomas, S.C.

Victoria Legal Aid

VINCENT, J.A.:

I agree in the disposition of these appeals as proposed by Smith, A.J.A. I do so for the reasons advanced by him in his judgment.

SMITH A. J.A.:

Background to appeals

WD and QMN have appealed against sentences imposed upon them for trafficking heroin between 9 November 2002 and 22 March 2001. The maximum penalty for the offence is 15 years imprisonment and a fine of $100,000.00

Both appellants pleaded guilty to the charges when presented in the County Court on 11 February 2003. WD received a sentence of seven years imprisonment with a non-parole period of five years. QMN received a sentence of four years and six months imprisonment with a non-parole period of three years. The learned sentencing judge also ordered that the appellants pay a pecuniary penalty of $17,400.00.

Grounds of appeal

QMN initially raised two grounds of appeal:

1. the sentence was manifestly excessive;
2.the learned sentencing judge erred in his finding concerning the scale of the applicant' s drug trafficking.

QMN was also given leave at the hearing of the appeal to advance a further ground, namely, that the head sentence and non-parole period infringed the principles of parity when regard is had to the sentences imposed on LD and JW, people involved in the same broad trafficking exercise as QMN and WD.

WD raised the same first two grounds of appeal as those raised by QMN. He also advanced a third ground, namely, that the sentence imposed on him was

manifestly disparate in comparison with that imposed on QMN. Leave was given at the hearing of the appeal to add to that ground the names of three other persons; VN, LD & JW. Prior to the hearing of the appeal, WD sought, and was given, leave to add a further ground which sought to rely on evidence not placed before the learned sentencing judge, about assistance given by him to the police.

I will consider initially the first three grounds relied upon by each appellant. I turn, therefore, to the facts relating to the offences committed by the appellants and the other persons named above and other matters relevant to the sentences imposed as revealed primarily in the reasons for sentence.

Reasons for sentences imposed on WD and QMN

The learned sentencing judge held, on the basis of intercepted telephone calls, that the home of the appellants was…

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 QMN

Details

AGLC: R v QMN [2004] VSCA 32
Case: [2004] VSCA 32
Decision Date: 17 March 2004

CaseChat Overview and Summary

The appellant, QMN, was convicted for trafficking in heroin. Following the conviction, the appellant was sentenced to imprisonment. Dissatisfied with the sentence, the appellant appealed to the higher court, contending that the sentence imposed was manifestly excessive and disproportionate compared to the sentence received by co-offenders involved in the same crime. The appeal raised questions about the principles of sentencing, particularly in cases involving drug trafficking, and the requirement for proportionality in sentencing among co-offenders.

The court examined the principles of sentencing, focusing on the need for sentences to be proportionate to the gravity of the offence and the offender's culpability. The appeal hinged on whether the disparity between the sentences of the co-offenders was so significant as to render the appellant's sentence manifestly excessive. The court considered the totality of the circumstances, including the appellant's role in the drug trafficking operation, the quantity of heroin involved, and the comparative sentences of co-offenders. The court also reviewed whether the sentencing judge adequately considered the principles of proportionality in imposing the sentence.

In its judgment, the court determined that the sentence imposed on the appellant was not manifestly excessive or disproportionate when compared to the sentences of co-offenders. The court found that the sentencing judge had properly considered the principles of proportionality and had given adequate weight to the appellant's role and culpability in the crime. The court held that the sentence was within the appropriate range for the offence committed and did not constitute an error of law. Consequently, the appeal was dismissed.

No further orders were made.

Orders