R v Starr - [2002] VSCA 180

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 83 of 2002

THE QUEEN

AARON JAMES STARR
And

ALLAN JOHN SMITH

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JUDGES:	WINNEKE, P., CHERNOV, J.A., O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2002
DATE OF JUDGMENT:	14 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 180	1^st Revision – 15 November 2002

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CRIMINAL LAW - Sentencing - Trafficking in three drugs of dependence between dates (methylenedioxy, methylamphetamine (ecstasy) and cannabis) - Test for remorse - Whether too narrowly stated - Weight to be given to remorse and early guilty plea - Whether judge erred in finding that the appellant’s motive was driven by greed not need - Whether head sentence and minimum term manifestly excessive.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr C. Ryan

K. Robertson, Solicitor for Public Prosecutions

For the Appellant Starr

For the Appellant Smith

Mr B. Lindner

Mr O.P. Holdenson, Q.C.

Victoria Legal Aid

Michael J. Gleeson

WINNEKE, P:

I agree with O'Bryan, A.J.A.

CHERNOV, J.A.:

I also agree with O'Bryan, A.J.A.

O'BRYAN, A.J.A:

On 28 November, 2001, the appellants, Aaron James Starr ("Starr") and Allan John Smith ("Smith"), who are now aged 30 and 38 respectively, each pleaded guilty in the Supreme Court at Mildura, to one count of trafficking in a drug of dependence (count 1). This count was a Giretti[1] style count pertaining to events which took place between 1 March 2000 and 4 May 2000, contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty in respect of the offence was 15 years’ imprisonment and/or a fine of $100,000. The presentment also contained one count of conspiracy to murder (count 2), for which the appellants were subsequently tried and acquitted, and one count against Starr, of using a firearm to resist or prevent lawful apprehension or detention (count 3). That count is not relevant for current purposes. Starr admitted to 29 convictions from 8 court appearances dating back to 1990, none of which were directly relevant to the charge before the sentencing judge but, as his Honour noted, the history nevertheless disentitled Starr to rely upon past good character. Smith had no prior convictions.
[1]R. v. Giretti (1986) 24 A.Crim.R. 112.

After hearing pleas in mitigation, the learned sentencing judge sentenced both offenders to be imprisoned for four years, with a minimum period of two years and nine months to be served before being eligible for parole.

By notice of application for leave to appeal dated 24 April, 2002, filed out of

time, Starr sought leave of this Court to appeal against the sentence imposed. Smith sought similarly by notice dated 12 April, 2002. Leave to appeal was granted to both applicants by Winneke P, pursuant to s.582 of the Crimes Act 1958 on 26 July, 2002.

Starr initially specified four grounds of appeal:

1.That the sentencing judge erred in giving insufficient weight to the plea of guilty and the early plea.
2.That the judge took an irrelevant circumstance…

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 Starr

Details

AGLC: R v Starr and Smith [2002] VSCA 180
Case: [2002] VSCA 180
Decision Date: 14 November 2002

CaseChat Overview and Summary

In the case of R v Starr, the appellant was convicted of trafficking in three drugs of dependence between certain dates, specifically methylenedioxy, methylamphetamine (commonly known as ecstasy), and cannabis. The appeal was against his sentence, which was imposed by the Supreme Court of Victoria. The appellant argued that the trial judge erred in several respects concerning the assessment of his remorse and the determination of his motive for the crime. Additionally, he contended that the head sentence and minimum term were manifestly excessive.

The primary legal issues that arose in this appeal were whether the trial judge had too narrowly interpreted the test for remorse and whether he had correctly assessed the weight to be given to the appellant’s remorse and early guilty plea. Another issue was whether the judge erred in concluding that the appellant’s motive for the crime was driven by greed rather than need. Finally, the court considered whether the head sentence and the minimum term imposed were manifestly excessive.

The court found that the trial judge had not erred in his approach to the assessment of the appellant’s remorse. It held that the judge had correctly applied the legal principles concerning the weight to be given to remorse and an early guilty plea. Furthermore, the court determined that there was no error in the judge’s finding that the appellant’s motive was driven by greed rather than need. The court concluded that the sentence imposed was not manifestly excessive, as it had appropriately balanced the relevant aggravating and mitigating factors. The appeal was dismissed, and the sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and the sentence imposed by the Supreme Court of Victoria was upheld. The court found no errors in the trial judge’s assessment of the appellant’s remorse, motive, or the overall sentence. The head sentence and minimum term were deemed to be appropriate in the circumstances of the case.

Orders