R v Vidler - [2018] QCA 232

[2018] QCA 232

COURT OF APPEAL

SOFRONOFF P
McMURDO JA
HENRY J

CA No 44 of 2018
SC No 703 of 2017
SC No 199 of 2018

THE QUEEN

VIDLER, Scott Andrew Applicant

BRISBANE

MONDAY, 24 SEPTEMBER 2018

JUDGMENT

McMURDO JA: On 15 February 2018, the applicant pleaded guilty to four offences charged on an indictment and 10 summary offences. Each was a drug offence, the most serious of which was trafficking in a dangerous drug over a period of about two years, seven months. For that offence he was sentenced to a term of 10 years imprisonment. A total of 500 days of presentence custody was declared as time already served, and a serious violent offence declaration was made. He was convicted but not further punished on the other charges. He seeks leave to appeal against that sentence on a ground which is expressed as follows:

“The sentencing judge erred by failing to account, adequately or at all, the time that the applicant had spent in custody prior to sentence that cannot be declared as pre-sentence custody. As a consequence, the sentence was rendered manifestly excessive.”

As the applicant’s argument made clear, the sentence is challenged upon the basis that there was a specific error in the exercise of the judge’s discretion, rather than an argument that some error must be inferred because of the manifest excess of the sentence. If a specific error is establish, and this court is of the view that a lower sentence should have been imposed, it will do so without the applicant having to demonstrate that his 10 year term is manifestly excessive.

The applicant was born in 1964, so that he was aged 49 to 51 at the time of his offending, and 53 when sentenced. He had some criminal history, but one which the sentencing judge described as “minor and essentially irrelevant”.

The circumstances of his offending were uncontroversial and they were set out in a schedule of facts which was tendered by the prosecutor. Early on, the applicant was trafficking in cannabis, but for the final 15 months he was also trafficking in methylamphetamine. He was selling or sourcing drugs to sell almost daily, and often several times in a single day.

He sold at a wholesale level to street level dealers, of whom there were at least 15. Intercepted phone calls indicated his acquisition of at least a kilogram of methylamphetamine across 20 transactions in one two-month period. He had others assisting him. He was not part of a larger syndicate, but he was, in the sentencing judge’s description, a “major player” in the distribution of methylamphetamine throughout southeast Queensland as well as interstate. Between January 2014 and August 2015 there were 57 deposits of unexplained funds to his bank account totalling more than $300,000.

He was the subject of a number of searches by police during the trafficking period. In August 2015 he was searched by police while in a stolen car, when he was in possession…

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 Vidler

Details

AGLC: R v Vidler [2018] QCA 232
Case: [2018] QCA 232
Decision Date: 24 SEPTEMBER 2018

CaseChat Overview and Summary

In the matter of R v Vidler, the applicant, Scott Andrew Vidler, sought leave to appeal against his sentence, arguing that the sentencing judge failed to adequately account for the time he had spent in custody prior to sentence. Vidler was sentenced to a term of 10 years imprisonment for trafficking in a dangerous drug over a period of approximately two years and seven months. He pleaded guilty to four offences charged on an indictment and 10 summary offences, all of which were drug-related. The applicant contends that the sentencing judge did not provide sufficient consideration for the 148 days of custody that could not be declared as pre-sentence custody, rendering the sentence manifestly excessive.
The primary legal issue in this case is whether the sentencing judge erred in failing to adequately account for the undeclared period of pre-sentence custody, and if such an error affected the exercise of the judge's discretion. The court must determine whether the applicant's sentence was manifestly excessive due to this alleged error. If a specific error is established, the court may reduce the sentence without requiring the applicant to demonstrate that the 10-year term is manifestly excessive.
The Court of Appeal found that the sentencing judge did, in fact, consider the undeclared period of custody when determining the appropriate sentence. Although the judge did not explicitly outline the impact of this period, it was evident from her remarks that she had taken it into account. The Court of Appeal held that the judge was not required to announce two separate sentences, one with and one without the undeclared period. Furthermore, the court found that the sentence imposed was not manifestly excessive, even when considering the undeclared period of custody.
In conclusion, the Court of Appeal refused the applicant's application for leave to appeal against his sentence. The court determined that the sentencing judge had adequately considered the undeclared period of custody and that the sentence was not manifestly excessive as a result. The order of the court was that the application is refused.

Orders