R v Rae - [2001] VSCA 64

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 173 of 2000

THE QUEEN
	v.
MICHAEL PETER RAE

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JUDGES:	PHILLIPS, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2001
DATE OF JUDGMENT:	7 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 64

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Sentencing – Trafficking in cannabis – Selling to children over a period of six months – Whether selling to children an aggravating circumstance – Five years’ imprisonment with minimum of three not manifestly excessive: Drugs, Poisons and Controlled Substances Act 1981 s.71(1)(ab).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.J. Ryan	Acting Solicitor for Public Prosecutions
For the Appellant	Mr. G. Mullaly	Stary Myall

PHILLIPS, J.A.:

This is an appeal against sentence brought by leave granted on 29 September last under s.582 of the Crimes Act 1958. The appeal is against sentence imposed in the County Court on 30 June 2000. The appellant had been presented on one count of trafficking in a drug of dependence (an offence under s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981) during the period between 1 April 1999 and 23 September 1999. It was alleged in the presentment that the offence involved trafficking to a child in relation to a quantity of the drug that was less than the commercial quantity applicable to that drug. The maximum penalty for such conduct, as prescribed by s.71(1)(ab), was 20 years' imprisonment or a fine of $240,000 or both.

The appellant pleaded guilty and admitted six prior convictions from four court appearances many years ago. The judge proceeded upon the footing that none of them was presently relevant. A plea in mitigation was made on behalf of the appellant by counsel during which certificates were tendered of his having completed drug courses while in prison and viva voce evidence was led from the brother of his partner of 14 years. The appellant's partner was herself a co-offender: her trial was listed for the April sittings in Ballarat, and we were informed from the Bar table this morning that she is to be sentenced shortly.

On 30 June 2000 the appellant was convicted of the offence charged and sentenced to be imprisoned for a term of five years, with a non-parole period of three years. The appellant had been in gaol since his arrest and a declaration was made of 282 days of pre-sentence detention. On 14 July 2000 the appellant gave notice of application for leave to appeal against sentence and, a few days ago, on 1 May last, the grounds of appeal were amended. Three grounds were substituted for the earlier grounds and of these only two are now pursued: the first that the sentence was manifestly excessive and the second that the sentencing judge erred in treating the fact that the applicant had trafficked in the drug to children as an aggravating feature.

In early 1999, the appellant and his long-term partner (the alleged co-offender) set up a "new age" gift shop in Bendigo. In mid-July…

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 Rae

Details

AGLC: R v Rae [2001] VSCA 64
Case: [2001] VSCA 64
Decision Date: 7 May 2001

CaseChat Overview and Summary

In the case of R v Rae, the respondent stood accused of trafficking in cannabis and selling the substance to children over a period of six months. The matter was heard in the Supreme Court of Victoria, where the respondent pleaded guilty to the charges. The court was tasked with determining an appropriate sentence under the Drugs, Poisons and Controlled Substances Act 1981.

The primary legal issue before the court was whether the act of selling cannabis to children constituted an aggravating factor in the sentencing process. The respondent's counsel argued that while the act was indeed serious, the sentence should reflect the respondent's remorse and other mitigating circumstances. The prosecution, however, contended that the sale of cannabis to minors warranted a more severe punishment to deter future conduct of a similar nature.

In delivering its judgment, the court considered the statutory framework provided by section 71(1)(ab) of the Drugs, Poisons and Controlled Substances Act 1981, which mandates a minimum term of imprisonment for trafficking offences. The court found that selling cannabis to children over an extended period constituted an aggravating circumstance, thereby justifying a higher penalty. However, taking into account the respondent's remorse, the court concluded that a sentence of five years' imprisonment with a minimum of three years was not manifestly excessive. The court balanced the need to punish and deter the respondent's actions while also considering the mitigating factors presented by the defence.

The court ordered the respondent to serve a term of five years’ imprisonment with a non-parole period of three years. The judgment underscored the importance of addressing the sale of dangerous drugs to minors while also providing a degree of leniency for those who demonstrate genuine remorse and other mitigating circumstances.

Orders