R v Reed; R v Shortis - [2007] VSCA 67

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 253 of 2006

THE QUEEN

SIMON JOHN REED

No. 239 of 2006

THE QUEEN

LENNI ELLEN SHORTIS

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JUDGES:	VINCENT and NETTLE JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2007
DATE OF JUDGMENT:	23 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 67

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Criminal Law – Sentencing – Trafficking in a drug of dependence (pseudoephedrine) – Theft – Handling stolen goods – Comments made by sentencing judge regarding harmfulness of drug – R v Pidoto and O’Dea [2006] VSCA 185; R v D’Aloia [2006] VSCA 273 – Whether judge erred in imposing the same sentence on each appellant in respect of trafficking count – Use of each appellants’ record of interview as supporting other co-accused’s reasons for involvement – R v Halden (1983) 9 A Crim R 30 – Manifest excess – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant Reed	Mr G F Meredith	Dowling McGregor Thomas
For the Appellant Shortis	Mr L C Carter	Tony Hannebery Lawyers

VINCENT JA:

The appellants, who were jointly presented, pleaded guilty in the County Court at Melbourne on 26 July 2006 to one count of trafficking in a drug of dependence, namely pseudoephedrine (count 3). The appellant Reed, also pleaded guilty to one count of stealing a quantity of tablets containing that drug (count 1) and the appellant Shortis, pleaded guilty to a count of dishonestly handling those tablets knowing them to have been stolen (count 2).

After hearing a plea in mitigation of penalty, the sentencing judge on 28 July 2006 imposed upon the appellant Reed, the following terms of imprisonment:
On count 1 - six months; and
On count 3 - 24 months
His Honour directed that three months of the sentence imposed on count 1 be served cumulatively upon that imposed on count 3. This created a total effective of 27 months’ imprisonment in respect of which a non-parole period of 13 months was fixed.
The appellant Shortis, was sentenced:
On count 2 - to three months’ imprisonment; and
On count 3 - to 24 months’ imprisonment.
In her case, his Honour directed that the sentences were to be served concurrently, thus creating a total effective sentence of 24 months in respect of which he fixed a non-parole period of 12 months’ imprisonment.
Having been granted leave to do so, the appellants, on the following grounds, seek to have these dispositions set aside and to be re-sentenced:

Reed
1.        The learned sentencing judge erred in taking into account an          irrelevant consideration in a material manner in imposing      sentence. In particular his Honour took into account the            harmfulness of pseudoephedrine/methylamphetamine when            sentencing the appellant.
2.        The learned sentencing judge erred in imposing the same      sentence on the appellant and the co-offender Shortis for the        offence of trafficking.
3.        The learned sentencing judge erred in failing to find as a fact…

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.

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Details

Case: [2007] VSCA 67
Decision Date: 23 April 2007

CaseChat Overview and Summary

The appellants, Reed and Shortis, were convicted of trafficking in pseudoephedrine and handling stolen goods, and were sentenced to equal terms of imprisonment. The matter was heard in the Court of Appeal of Victoria. The appellants appealed their sentences, arguing that the judge erred in imposing identical sentences on each of them for the trafficking count and in using their respective records of interview to support the reasons for the involvement of other co-accused.

The central legal issues before the court were whether the judge erred in imposing equal sentences on the appellants for the trafficking count and whether the use of their records of interview to support the reasons for the involvement of other co-accused was appropriate. The court had to determine if the judge's comments about the harmfulness of pseudoephedrine and the use of the appellants' records of interview as supporting evidence for other co-accused's reasons for involvement constituted a manifest excess of judicial discretion.

The court found that the judge did not err in imposing the same sentence on each appellant for the trafficking count, as both appellants were equally culpable for the offence. Furthermore, the court held that the use of each appellant's record of interview as supporting evidence for other co-accused's reasons for involvement did not constitute a manifest excess of judicial discretion. The court also considered that the comments made by the sentencing judge regarding the harmfulness of pseudoephedrine did not influence the sentence imposed. The appeals were dismissed.

There were no final orders made by the court beyond the dismissal of the appeals.

Orders