JUDGES:	VINCENT and NETTLE, JJ.A. and KING, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 2006
DATE OF JUDGMENT:	13 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 238

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Criminal Law – Sentencing – Trafficking in a drug of dependence – Cultivation of a narcotic plant – Theft of electricity – Whether judge had regard to sentencing parity as between co-offenders – Whether exceptional circumstances applied – Confiscation and pecuniary penalty – Whether sentence to be mitigated to compensate for the penal effects of forfeiture and pecuniary penalty under the Confiscation Act 1997 - Sentencing Act 1991 - ss.5(2A) and (2B).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C.M. Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T. Kassimatis	Valos Black & Associates

VINCENT, J.A.:

I agree that this application should be refused for the reasons advanced by Nettle, J.A. in his judgment.

NETTLE, J.A.:

On 30 March 2005 the applicant was arraigned before a judge of the County Court at Melbourne on one count of trafficking in a drug of dependence (Cannabis L) ( Count 1), one count of cultivation of a narcotic plant in a commercial quantity (Cannabis L) (Count 2), and one count of theft of electricity (Count 3), to all of which he pleaded guilty. Following a plea in mitigation of penalty, on 13 October 2005 the judge sentenced the applicant on Count 1 to a term of imprisonment of four months, on Count 2 to a term of imprisonment of three years, and on Count 3 to a term of imprisonment of three months. The judge directed that two months of the sentence imposed on Count 3 be served cumulatively upon the sentence imposed on Count 2, making thereby for a total effective sentence of three years and two months, and her Honour ordered that the applicant serve not less than 19 months’ imprisonment before being eligible for parole.

The applicant now applies for leave to appeal against sentence on three grounds of appeal. It is convenient to deal with them in the order in which they were presented by counsel.

Ground 3 – ss.5(2A) and (2B) of the Sentencing Act 1991

Sections 5(2A) and (2B) of the Sentencing Act 1991 provide that:

(2A) In sentencing an offender a court –
(a)may have regard to a forfeiture order made under the Confiscation Act 1997 in respect of property –
(i)that was used in, or in connection with, the commission of the offence;
(ii)that was intended to be used in, or in connection with, the commission of the offence;
(iii)that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in sub-paragraph (i) or (ii);

(ab)if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property –
(i)that…

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 Tabone

Details

AGLC: R v Tabone [2006] VSCA 238
Case: [2006] VSCA 238
Decision Date: 13 November 2006

CaseChat Overview and Summary

The case of R v Tabone involved an appeal against a sentence imposed for trafficking in a drug of dependence, cultivating a narcotic plant, and stealing electricity. The defendant, Tabone, was sentenced in the Supreme Court of New South Wales. The appeal was heard by the New South Wales Court of Criminal Appeal, which was tasked with determining whether the sentencing judge had properly considered the principles of sentencing parity between co-offenders, the existence of exceptional circumstances, and the appropriate mitigation of the sentence to account for the confiscation and pecuniary penalty imposed under the Confiscation Act 1997.

The primary legal issues before the court were whether the sentencing judge had adequately addressed the principle of parity in sentencing between co-offenders, if any exceptional circumstances warranted a departure from the standard sentencing practices, and whether the sentence should be adjusted to compensate for the penal effects of the forfeiture and pecuniary penalty. The appeal hinged on the interpretation and application of sections 5(2A) and (2B) of the Sentencing Act 1991, which pertain to the consideration of parity among co-offenders and the adjustment of sentences to reflect other penal consequences.

The court found that the sentencing judge had not sufficiently considered the principle of parity in sentencing between co-offenders, as required by section 5(2A) of the Sentencing Act 1991. The appeal court emphasised the importance of comparing the sentences of co-offenders to ensure consistency and fairness. Additionally, the court determined that no exceptional circumstances were present that would warrant a deviation from the standard sentencing principles. Finally, regarding the mitigation of the sentence to account for the confiscation and pecuniary penalty, the court concluded that the sentence should not be adjusted because the penal effects of these penalties were already comprehensively addressed in the overall sentencing process.

In light of these findings, the appeal was allowed, and the matter was remitted to the sentencing court for reconsideration in accordance with the principles outlined by the Court of Criminal Appeal. The final orders included a directive for the sentencing court to reassess the sentence with due regard for the principles of parity and exceptional circumstances, and to ensure that any adjustments were made appropriately in light of the confiscation and pecuniary penalty imposed.

Orders