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	1ST 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.:

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

VINCENT, J.A.: 

1. 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.

1. 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.

1. 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 stated the name of the co-offender X and he referred to written submissions which are not before us.  Mr Tehan, however, has told the Court that for practical purposes they raised no different arguments to those which he has advanced this morning.  It is sufficient to state in the present context, for the reasons, which I adopt, that are set out in his Honour's judgment, an edited version of which will be annexed to the written version of this judgment, I consider that O'Bryan, A.J.A. was clearly correct in refusing the application. 

1. Perusal of the material before this Court does not raise any suggestion, in my mind, that the sentencing judge may have fallen into error in any of the respects asserted, that he failed to apply or misapplied any relevant sentencing principle, that he failed to have proper regard to any relevant consideration of a factual or legal kind, or specifically that he failed to apply appropriately the principle of parity of treatment of co-offenders.  With respect to that last mentioned matter, it is apparent from the sentencing remarks, in the case of each of the three named co-offenders, that there were quite different considerations applicable to each which justified a degree of disparity in the sentences imposed on each of them.  There is no justification for this Court to hold that the sentencing judge may have fallen into some error in this respect.  Nor, indeed, does the subsequent disposition of those various offenders raise a justifiable sense of grievance on this applicant's part. 

1. I do not consider that error can be seen to be manifested by the length of either of the individual sentences imposed upon the applicant, the total effective sentence imposed or the non-parole period fixed in the particular circumstances of this matter.  The order for cumulation between the two counts was, in my view,

entirely appropriate in the circumstances when one has regard to the fact that they were all separate kinds of offending totally unconnected.

1. Accordingly, I would dismiss this application.

BATT, J.A.: 

1. I agree.  The view that the sentencing judge did not err in relation either to parity or to totality is confirmed by the detailed and helpful report to this Court dated 2 July 2004 which his Honour provided when the grounds of appeal were finally amended.

EAMES, J.A.:

1. For the reasons given by Vincent, J.A., I agree that the application should be refused.

BATT, J.A.:

1. The order of the Court is:

Application for leave to appeal against sentence dismissed.

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Annexure follows)