R v S O - [2004] VSCA 142

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.54 of 2003

THE QUEEN
	v.
S.O.

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2004
DATE OF JUDGMENT:	21 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 142	1^ST Revision: 9 September 2004

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Criminal law - Sentence - Trafficking in drug of dependence - Cultivation of narcotic plant - Manifest excess - Parity of sentences between applicant and co-offenders - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Maguire	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. and Mr M. Kowalski	Balot Reilly & Associates

BATT, J.A.:

I will ask Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.:

The applicant pleaded guilty before the County Court at Melbourne to one count of trafficking in not less than a commercial quantity of a drug of dependence, namely MDMA otherwise known as ecstasy (count 1) and one count of the cultivation of a narcotic plant (count 2). He was, with respect to the offending encompassed by count 1, part of a larger team, including three persons of relevance to the present application, namely X, Y and Z (as I shall call them), involved in the trafficking of ecstasy in large quantities. After hearing a plea in mitigation of penalty, the applicant was, on 28 February 2003, sentenced to imprisonment for seven years on the trafficking count and imprisonment for six months, to be served cumulatively, for the cultivation of a narcotic plant. This created a total effective sentence of seven years and six months' imprisonment in respect of which the learned sentencing judge fixed a non-parole period of four years and six months.

A notice of application for leave to appeal against sentence was lodged and subsequently amended by the addition and substitution of grounds so that it now asserts that:

"1.The learned sentencing judge erred by failing to properly apply the principles of parity in sentencing between the appellant and the co-offenders Z and Y.
2.That the learned sentencing judge erred in imposing a penalty in respect of count 2 that was excessive and failed to take into account the principle of totality in sentencing."

Although those changes were not effected until later, the grounds upon which the matter has come before this Court were argued in a hearing before O'Bryan, A.J.A., conducted pursuant to s.582 of the Crimes Act, at the conclusion of which his Honour refused leave to appeal. The applicant then elected to have the matter considered by

a court of three judges.

The present application can, I think, be dealt with quite briefly. It would seem to be clear that the arguments presented before us in both written and oral form, by Mr Tehan in support of the contention raised by each of the grounds, were in their central features identical to those advanced before and rejected by O'Bryan, A.J.A. I observe, however, that in his Honour's judgment he incorrectly…

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: [2004] VSCA 142
Decision Date: 21 July 2004

CaseChat Overview and Summary

The case of R v S O involved the appellant, S O, and two co-offenders who were convicted of drug trafficking and cultivation of a narcotic plant. The matter was brought before the court to appeal the sentences handed down. The appellant contended that the sentences were manifestly excessive and disproportionate, particularly when compared to the sentences of the co-offenders. The court was required to determine whether the sentences were manifestly excessive and whether there was a parity of sentences between the appellant and the co-offenders.

The court considered the principles of sentencing and the need for consistency and proportionality. It examined the nature and extent of the appellant's involvement in the drug trafficking operation, as well as the roles of the co-offenders. The court also considered the arguments regarding parity of sentences and whether the sentences imposed on the appellant were manifestly excessive. The court concluded that the sentences were not manifestly excessive and there was no parity of sentences between the appellant and the co-offenders. The court found that the sentences were proportionate to the offending and took into account the specific circumstances of each case.

The court dismissed the appeal and upheld the sentences imposed on the appellant. The court emphasised the importance of proportionality and consistency in sentencing, but found that the sentences in this case were appropriate. The court did not find any error in the sentencing process and rejected the appellant's arguments regarding the manifest excess and parity of sentences. The final orders of the court were that the appeal was dismissed and the sentences imposed on the appellant were upheld.

Orders