R v Sebborn - [2008] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 237 of 2007

THE QUEEN
	v.
MARK FRANCIS SEBBORN

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JUDGES:	VINCENT and WEINBERG JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 October 2008
DATE OF JUDGMENT:	10 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 200

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Criminal Law – Sentence – Trafficking in methylamphetamine and possession of Cannabis L – Whether sentencing judge erred in sentencing appellant as if he stood to benefit commercially from his drug manufacture – Whether sentencing judge failed to have adequate regard to totality principle notwithstanding s 16(3C) of the Sentencing Act 1991 – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C Boyce	Robert Stary Lawyers

VINCENT JA

WEINBERG JA
ROBSON AJA:

The appellant, Mark Francis Sebborn, pleaded guilty in the County Court at Melbourne to all counts on two presentments. The first presentment contained two counts: Trafficking in methylamphetamine and possession of Cannabis L. There were three counts on the second presentment: trafficking in methylamphetamine, possession of methylamphetamine, and possession of Cannabis L.

On the first presentment on count 1, trafficking in methylamphetamine, the appellant was sentenced to be imprisoned for a period of two years. On the count of possession of cannabis, he was fined the sum of $250. On the second presentment on count 1, trafficking in methylamphetamine, the appellant was sentenced to be imprisoned for a period of two years and six months. On the count of possession of amphetamine, he was sentenced to be imprisoned for a period of three months. On the count of possession of cannabis, he was fined $500.

Circumstances surrounding the offences

On 24 February 2005 a house the appellant had been renting in Sunshine was raided by the police. They discovered a clandestine laboratory designed for the manufacture of methylamphetamine. Items found included literature, handwritten notes on the method of manufacture of methylamphetamine, a list of local pharmacies, laboratory equipment, and other associated paraphernalia. Snap-lock bags and electronic scales were also found. The appellant was arrested and interviewed.

He remained in custody for several months before finally obtaining bail in May 2005.

On 6 September 2006 the police raided a house in Heidelberg West. Earlier that day, the appellant had been in contact with the occupant of those premises. He had agreed with that person to manufacture methylamphetamine at those premises later that day. The appellant then went to the house, bringing with him two boxes of pseudoephedrine-based medication. He subsequently attempted to purchase some additional supplies and other items relevant to the manufacturing process. He returned to the house and began to produce the drugs. The quantity of material located was consistent with the production of approximately two grams of methylamphetamine.

The appellant was arrested in his car later that night. Police found other items consistent with his having participated in having manufactured ecstasy. They also found a syringe, two plastic bags containing 30 milligrams…

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 Sebborn

Details

AGLC: R v Sebborn [2008] VSCA 200
Case: [2008] VSCA 200
Decision Date: 10 October 2008

CaseChat Overview and Summary

In the matter of R v Sebborn, the appellant stood convicted of drug trafficking and possession of cannabis. The case was heard in the Supreme Court of Victoria. The central issue revolved around whether the sentencing judge had erred in their assessment of the appellant's culpability and whether they had adequately considered the totality principle when imposing the sentence, despite the constraints of section 16(3C) of the Sentencing Act 1991.

The court was required to determine if the sentencing judge correctly evaluated the appellant's role and potential commercial gain from the drug trafficking activities. Additionally, it had to assess whether the judge appropriately balanced the totality principle against the statutory directive. The appellant argued that the sentencing judge had not sufficiently considered the totality of the circumstances and the potential for a lesser sentence given the mitigating factors present in his case.

The court found that the sentencing judge did indeed err by not adequately considering the totality principle. Despite the constraints of the statutory provision, the judge's failure to balance the mitigating factors against the appellant's role in the drug trafficking warranted an appeal. Consequently, the court allowed the appeal, holding that the sentence imposed was excessive and did not appropriately reflect the totality of the circumstances. The case was remitted to the sentencing court for reconsideration in light of the court's findings.

Orders