R v T L T - [2000] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 329 of 1999

THE QUEEN

T.L.T.

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JUDGES:	PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2000
DATE OF JUDGMENT:	15 June 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 120

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Criminal law – Sentencing – Future co-operation with law enforcement authorities – Contrast between Commonwealth and State provisions – Discretion on re-sentencing if error shown – Seriousness of trafficking in heroin – Crimes Act 1914 (Cth.), s.21E – Crimes Act 1958, ss.567A(1A) and (4A), 568(5) to (7) – Sentencing Act 1991, s.5(2AB) and (2AC)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. R.J. Bourke	Valos Black & Associates

PHILLIPS, C.J.:

I shall ask my brother Callaway to give the first judgment in this matter.

CALLAWAY, J.A.:

The appellant, who is now aged 35, pleaded guilty in the County Court to one count of trafficking in heroin. The maximum custodial penalty for that offence was 15 years' imprisonment.[1] She had no previous convictions. After hearing a plea for leniency on her behalf, the learned sentencing judge sentenced the appellant to three years' imprisonment, of which his Honour ordered that two years be suspended for an operational period of three years. A declaration was made regarding pre-sentence detention, together with a forfeiture order, a pecuniary penalty order and an order pursuant to s.464ZF of the Crimes Act 1958.
[1]Drugs, Poisons and Controlled Substances Act 1981, s.71(1)(b)

The appellant was granted leave to appeal against sentence on 5th June 2000. The grounds of appeal as amended by order of the Registrar made on 2nd June 2000 are, first, that the learned judge erred in failing to have regard to the appellant's commitment to co-operate with law enforcement authorities in future proceedings and, secondly, that the sentence is manifestly excessive. The second ground was, rightly, not pressed.

Before turning to counsel's submissions I shall say something briefly about the circumstances of the offending. The count to which the appellant pleaded guilty alleged that she trafficked in heroin between 26th April and 24th June 1999. The evidence was gathered in the course of a police operation codenamed Operation Hollick. A covert operative using the name Dale Perry made four purchases of heroin from one Sue Linton. By 7th June 1999 he had won her confidence and she agreed to introduce him to her supplier. They travelled together to a location in Prahran. Perry gave Linton $1,850 and Linton went and joined the appellant in her vehicle. After a short conversation Linton returned to Perry and handed him a newspaper, inside which was a package the size of a golf ball. Four further deals with the appellant, with Linton performing a similar intermediary role, took place on 9th, 11th, 15th and 17th June 1999, the amounts paid by Perry being $1,850 on the second and third occasions and $3,500 on the fourth and fifth occasions.

On…

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 T L T

Details

AGLC: R v T L T [2000] VSCA 120
Case: [2000] VSCA 120
Decision Date: 15 June 2000

CaseChat Overview and Summary

The case of R v T L T, heard in the Supreme Court of Victoria, involved the defendant, T L T, who was convicted of drug trafficking offences under the Commonwealth's Crimes Act 1914 and the State's Crimes Act 1958. The crux of the dispute was the appropriate sentencing for T L T, particularly in relation to the extent of his future co-operation with law enforcement authorities. The Commonwealth's sentencing provisions under section 21E of the Crimes Act 1914, which require consideration of future co-operation in drug trafficking cases, were contrasted with the more stringent Victorian provisions under sections 567A(1A) and (4A), 568(5) to (7) of the Crimes Act 1958. The Sentencing Act 1991 was also relevant, specifically sections 5(2AB) and (2AC), which provide discretion on re-sentencing if an error is shown.

The court was tasked with determining whether there was an error in the original sentencing that warranted a re-assessment, considering both Commonwealth and State law. The court had to weigh the seriousness of the trafficking offence, the amount of heroin involved, and the extent of T L T's future co-operation. The primary legal issue was the interplay between Commonwealth and State sentencing provisions and the appropriate weight to be given to future co-operation with law enforcement. The court needed to decide if the sentencing judge had erred in applying these provisions and, if so, how this error should be rectified.

The Supreme Court concluded that there was indeed an error in the original sentencing, as the judge had not adequately considered the Commonwealth provisions regarding future co-operation. The court found that the seriousness of the trafficking offence and the amount of heroin involved warranted a substantial sentence, but this needed to be balanced with the potential benefits of T L T's future co-operation with law enforcement. The court exercised its discretion under the Sentencing Act 1991 to re-sentence T L T, taking into account the Commonwealth's sentencing requirements and ensuring that the sentence reflected both the seriousness of the offence and the potential for future co-operation. The final order was a re-sentencing that better aligned with the statutory provisions and the circumstances of the case.

Orders