R v Wade

Case [2005] VSCA 276 10 November 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 137 of 2005

THE QUEEN
	v.
DAMIEN PETER WADE

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JUDGES:	MAXWELL, P., CHARLES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2005
DATE OF JUDGMENT:	10 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 276

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Criminal law – Sentencing – Trafficking in a drug of dependence – Pre-sentence detention – Sentencing judge obliged to consider period served while remanded in custody on unrelated count – Parity – Co-offender pleaded not guilty and found by sentencing judge to be the leader of the criminal enterprise – Appellant pleaded guilty with no prior convictions Both sentenced to two years’ imprisonment with a non-parole period of 15 months – Appellant’s sentence would engender justifiable sense of grievance – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.R.C. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Leanne Warren & Associates

MAXWELL, P.:

The appellant, who is 31 years of age, pleaded guilty in the County Court at Bairnsdale on 13 April 2005 to one count of trafficking in a drug of dependence, contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981. As the learned sentencing Judge said at paragraph [19], the plea of guilty covered two aspects of trafficking. The first and major component of the offending was the selling of methylamphetamine over a period of two months between July and September 2003; that falls, of course, within paragraph (c) of the definition of "traffick" in s.70. The second, and much lesser, component of the offending was Mr Wade's having played a part in the manufacture of methylamphetamine on the day in question, being 3 September 2003. Under s.71AC of that Act the maximum penalty for trafficking is 15 years' imprisonment.

Mr Wade has no prior convictions. On 27 April this year he was sentenced by the learned sentencing Judge to two years' imprisonment with a non-parole period of 15 months. His Honour determined that 59 days of pre-sentence detention had to that time been served. On 9 September this year Mr Wade was granted leave to appeal against sentence under s.582 of the Crimes Act 1958.

I turn now to the circumstances of the offending. On 3 September 2003 a police investigation uncovered the manufacture of methylamphetamine in a shed located within a property in Nungurner. The property was owned by one of the co-offenders, David Willowhite. The police executed a search warrant on the premises which uncovered what the sentencing Judge described as a clandestine laboratory, containing methylamphetamine and other chemicals and equipment used in the manufacture of methylamphetamine. Police arrested the appellant and the co-offenders Willowhite, Taylor and Faragher. Police also arrested the appellant's partner, but she was later released without charge.

Mr Wade was arrested when leaving the property with his partner in order to purchase some food. He had in his possession three pseudo-ephedrine tablets and eight small plastic bags each containing a substance which…

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.

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Details

AGLC: R v Wade [2005] VSCA 276
Case: [2005] VSCA 276
Decision Date: 10 November 2005

CaseChat Overview and Summary

The matter of R v Wade involved the sentencing of two individuals convicted of trafficking in a drug of dependence. The appellant, Wade, had pleaded guilty to the offence and had no prior convictions, while his co-offender pleaded not guilty and was found to be the leader of the criminal enterprise. Both were sentenced to two years’ imprisonment with a non-parole period of 15 months. The appellant contested the sentence on the grounds that it was excessive and disproportionate. The court of appeal was tasked with determining whether the trial judge had erred in imposing the sentence and whether the appellant's sentence engendered a justifiable sense of grievance.

The primary legal issue before the court was whether the trial judge had failed to appropriately consider the appellant's time spent in pre-sentence detention on an unrelated count, and whether the disparity between the sentences of the appellant and his co-offender was justified. The court needed to assess whether the sentence imposed on the appellant was appropriate in all the circumstances, including the need for parity between co-offenders who had participated in the same criminal enterprise. Additionally, the court had to consider whether the sentence imposed would engender a justifiable sense of grievance in the appellant.

In determining the appeal, the court of appeal held that the trial judge had erred in not considering the appellant's time spent in pre-sentence detention on an unrelated count. The court found that the appellant's sentence, without taking into account the time already served, would engender a justifiable sense of grievance. The court further noted that the disparity in sentencing between the appellant and his co-offender, who was found to be the leader of the criminal enterprise, was significant. The court concluded that the sentence imposed on the appellant was excessive and disproportionate, and allowed the appeal. The court of appeal ordered that the matter be remitted to the trial judge for re-sentencing, taking into account the period served while remanded in custody on the unrelated count.

Orders