R v Starr & Smith

[2002] VSCA 233

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 103 of 2002
No. 83 of 2002

THE QUEEN

v.

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:	22 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 233

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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.:

1. On 14 November 2002, after taking time to consider our decision in these appeals, we announced that we would dismiss each of them.   At the same time, O’Bryan, A.J.A. published reasons for judgment with which Chernov, J.A. and I expressed agreement.

1. Very shortly thereafter, Mr. Lindner, counsel for the appellant Starr, informed the Registrar that the reasons which we had published did not conform to the amended grounds of appeal, but rather to the unamended grounds – one of which had been abandoned.   The reason for this was simple.   The Court had not been favoured with a copy of the amended grounds filed on behalf of the appellant Starr.   Accordingly, on 15 November, the Court re-convened in the presence of counsel for each appellant and counsel for the Crown.   Having listened to each counsel, we recalled the orders which we made and gave the opportunity to each counsel to address such comments as he wished to make.   Counsel for Starr submitted that the reasons which had been given by the Court had been materially affected by the fact that they had addressed the unamended grounds;  and had, thus, addressed a ground which had been abandoned and not argued on appeal.   The Court observed that the reasons for decision addressed each of the grounds which had been argued by counsel, both orally and in written submissions, and was provisionally of the view that no miscarriage had occurred to the appellant Starr.   Counsel for the respondent submitted that each of the grounds argued on behalf of the appellant Starr had been dealt with by the Court in its reasons and that it was inappropriate for counsel, in the circumstances, to be given leave to address further argument to the Court.   Counsel for Smith reminded the Court that it was one of the submissions which he made that any reduction in sentence which this Court should order in favour of Starr should lead to a similar reduction in the sentence of Smith.

1. The Court, being of the provisional view that the reasons published had relevantly dealt with all the submissions raised by counsel for Starr during the hearing of the appeal, announced that it would consider the matters raised by

counsel, but would only list the appeal for further argument if we considered that such a hearing was necessary in the event which I have described.

1. The Court has now given the matters raised further consideration.   It is of the view that the reasons published on 14 November do fully address and deal with all of the submissions made by counsel for Starr in accordance with the amended grounds of appeal.   It is accordingly of the view that it is unnecessary to hear further submissions from counsel.   O’Bryan, A.J.A. has now taken the opportunity to recast what he said, but solely for the purposes of identifying, numerically, the amended grounds which were the subject of argument.  It will be seen that the reasons for dismissing the appeals are, in no sense, materially different from the reasons which we recalled.

1. With that introduction, the Court will now announce its decision and give its reasons for judgment.

1. I agree, for the reasons given by O’Bryan, A.J.A., that each of the appeals should be dismissed.   I publish my reasons.

CHERNOV, J.A.:

I agree and I publish my reasons.

O’BRYAN, A.J.A.:

I agree.   I publish my reasons.

WINNEKE, P.:

The formal orders of the Court will be that each of the appeals on behalf of Starr and Smith is dismissed.