R v Quinn - [2007] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 235 of 2006

THE QUEEN
	v
DANIEL QUINN

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JUDGES:	MAXWELL P, VINCENT and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 June 2007
DATE OF JUDGMENT:	29 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 141

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Criminal law – Sentence – Whether principle described in R v Hall (1994) 76 A Crim R 454 infringed – Whether failure to give adequate consideration to delay as a mitigating circumstance – R v Merrett (2007) 14 VR 392 – Whether sentence on count of trafficking in drug of dependence in not less than a commercial quantity manifestly excessive – Whether imposition of penalty under s 39(2), Dangerous Goods Act 1985 (Vic) based upon a misconstruction of the provision – Error in sentence which purported to defer commencement of non-parole period – Application and appeal allowed – Appellant re-sentenced for offence against s 54(5), Dangerous Goods Act – Form of sentence corrected.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Victoria Legal Aid

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I agree that the application should be disposed of as his Honour proposes, for the reasons which he gives.

VINCENT JA:

I agree in the disposition of this matter proposed by Ashley JA, and I do so for the reasons advanced by him in his judgment.

ASHLEY JA:

The applicant, Daniel Quinn, pleaded guilty in the County Court to a count of blackmail on one presentment[1]; and to counts of burglary,[2] theft,[3] trafficking in a drug of dependence in not less than a commercial quantity,[4] possession of a drug of dependence,[5] and being a prohibited person in possession of a firearm[6] on a second presentment. He also pleaded guilty to a summary offence of possession of unauthorized explosives.[7]
[1]Crimes Act 1958 (Vic) s 87(1). Maximum penalty, 15 years’ imprisonment.
[2]1 Count, count one. Ibid, s 76. Maximum penalty, 10 years’ imprisonment.
[3]2 Counts, counts 2 and 5. Ibid, s 74(1). Maximum penalty, 10 years’ imprisonment.
[4]1 Count, count 3. Drugs, Poisons and Controlled Substances Act 1981, s 71AA. Maximum penalty, 25 years’ imprisonment.
[5]2 Counts, counts 7 and 8. Ibid, s 73. Maximum penalty, 30 penalty units and/or one year’s imprisonment.
[6]1 Count, count 9. Firearms Act 1996, s 5(1A). Maximum penalty, 1800 penalty units or 15 years’ imprisonment.
[7]Dangerous Goods Act 1985 (Vic), s 54(5). Maximum penalty, see s 45(2)(b), effectively not more than ten penalty units.

On 20 July 2006 he was sentenced as follows:

Blackmail  -  12 months’ imprisonment
Burglary  -  18 months’ imprisonment
Theft (Count 2)  -  18 months’ imprisonment
Theft (Count 5)  -  6 months’ imprisonment
Trafficking  -  4 years’ imprisonment
Possession of drug
of dependence
(Counts 7 & 8)  -  fines of $200
Possession of firearm          -  12 months’ imprisonment

The sentence…

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 Quinn

Details

AGLC: R v Quinn [2007] VSCA 141
Case: [2007] VSCA 141
Decision Date: 29 June 2007

CaseChat Overview and Summary

The appellant in this case was convicted of several drug-related offences and sentenced in the County Court of Victoria. The appeal to the Court of Appeal was against both the sentence and the conviction. The nature of the appeal was multifaceted, concerning the adequacy of the sentence, the consideration of mitigating factors, and the legality of the penalty imposed. The Court of Appeal was tasked with determining whether the sentence imposed by the County Court was manifestly excessive and whether there was a failure to adequately consider mitigating factors, particularly the delay in bringing the case to trial.

The legal issues before the court involved whether the sentence for trafficking in a drug of dependence in a non-commercial quantity was manifestly excessive and whether the penalty imposed under section 39(2) of the Dangerous Goods Act 1985 (Vic) was correctly applied. Additionally, the court had to consider whether there was an error in the sentence that purported to defer the commencement of the non-parole period. These issues were examined in light of previous cases such as R v Hall and R v Merrett, which provide guidance on sentencing principles and the consideration of mitigating factors.

The Court of Appeal found that the sentence imposed by the County Court was indeed manifestly excessive and that there was a failure to give adequate consideration to the delay as a mitigating circumstance. Furthermore, the court determined that the penalty imposed under section 39(2) was based on a misconstruction of the provision. There was also an error in the sentence concerning the commencement of the non-parole period. Consequently, the Court of Appeal allowed the application and appeal, re-sentenced the appellant for the offence against section 54(5) of the Dangerous Goods Act, and corrected the form of the sentence.

Orders