R v Waugh - [2009] VSCA 92

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 547 of 2008
THE QUEEN	v
JASON WILLIAM WAUGH

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JUDGES:	VINCENT and NETTLE JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 2009
DATE OF JUDGMENT:	14 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 92

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CRIMINAL LAW – Sentencing – Trafficking and possession of a drug of dependence – Applicant sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years and six months – Parity and disparity in cumulation – Totality – Application refused – R v Djukic [2001] VSCA 226 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P Justin Hannebery	Brugman Mellas Barristers and Solicitors

VINCENT JA:

I have read the judgment of Nettle JA and agree that the application should be dismissed.

NETTLE JA:

This is an application for leave to appeal from a total effective sentence of four years’ imprisonment with a non-parole period of two years and six months imposed on the applicant on pleading guilty in the County Court at Geelong to one count of trafficking in methyl amphetamine (Count 22), one count of trafficking MDMA (Count 23), one count of possessing methyl amphetamine (Count 24), a further count of possessing methyl amphetamine (Count 25) and one count of being a prohibited person possessing an unregistered firearm (Count 26).

The circumstances of the offending

Most of the circumstances of the offending are described in the judge’s sentencing remarks, as follows. In November 2006 police investigated an extensive drug ring which was then operating in the Geelong area. One Steven Dare was identified as the focal point of the ring. He carried on business as a large scale street level retailer of drugs and sourced his stocks of drugs from a number of different suppliers. The applicant was one of the larger suppliers, and supplied Dare with significant quantities of amphetamines as well as other illicit substances.

Between 4 December 2006 and 10 June 2007, police intercepted many telephone calls to Dare’s mobile telephone. During once such call on 22 December 2007 the police heard the applicant supplying Dare with five ecstasy tablets for $125 (Count 23). In other calls, the police heard the applicant seeking money from Dare for drugs which the applicant had supplied.

On 29 December 2006 the applicant was intercepted by police for a licence check and, when his vehicle was searched, police found four zip-lock bags

containing 14 grams of amphetamines in the glove box. The applicant was arrested and taken to the police station where he was interviewed. During that interview, he admitted trafficking (that is part of the trafficking which comprised Count 22) but claimed, falsely, that he was being coerced to do so and that he was merely holding or transporting drugs.

The applicant was remanded in custody from 29 December 2006 until 4 January 2007, when he was bailed. Shortly after…

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 Waugh

Details

AGLC: R v Waugh [2009] VSCA 92
Case: [2009] VSCA 92
Decision Date: 14 May 2009

CaseChat Overview and Summary

In the matter of R v Waugh, the respondent appealed against the sentence imposed by the County Court of Victoria. The respondent had been found guilty of trafficking and possessing a drug of dependence, and was sentenced to a total effective sentence of four years’ imprisonment, with a non-parole period of two years and six months. The respondent contended that the sentence was manifestly inadequate and disproportionate, and that the trial judge had failed to properly consider the principles of parity and disparity in cumulation. The respondent submitted that the totality of the sentence was excessive, and that the non-parole period was too long.

The court was required to determine whether the sentence imposed was manifestly inadequate and disproportionate, and whether the trial judge had properly considered the principles of parity and disparity in cumulation. The court noted that the respondent had been sentenced to imprisonment for each count of trafficking and possession, and that the sentences were to be served concurrently. The court also noted that the trial judge had considered the principles of parity and disparity in cumulation, and had determined that the sentence imposed was appropriate in all the circumstances. The court referred to R v Djukic [2001] VSCA 226, which held that the totality of the sentence should be considered, rather than the individual sentences for each count. The court found that the trial judge had properly considered the principles of parity and disparity in cumulation, and that the sentence imposed was not manifestly inadequate or disproportionate.

The court found that the respondent’s application for leave to appeal against sentence was refused. The court held that the sentence imposed was appropriate in all the circumstances, and that the trial judge had properly considered the principles of parity and disparity in cumulation. The court noted that the sentence imposed was within the maximum penalty for the offences, and that the non-parole period was not excessive. The court found that the respondent’s argument that the sentence was disproportionate was without merit.

The court made no orders for costs.

Orders