R v Wright; R v Gabriel - [2008] VSCA 19

SUPREME COURT OF VICTORIA
COURT OF APPEAL

THE QUEEN

GARRY LEIGH WRIGHT

No 109 of 2007

THE QUEEN

ANTONIOS GABRIEL

No 110 of 2007

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JUDGES:	ASHLEY and KELLAM JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2008
DATE OF ORDERS:	7 February 2008 – Gabriel 22 February 2008 - Wright
DATE OF JUDGMENT:	22 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 19

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Criminal Law - Sentencing – Appellants Gabriel and Wright each pleaded guilty to trafficking ecstasy and amphetamine – Appellant Wright also pleaded guilty to trafficking cannabis – Co-offender pleaded guilty to trafficking a commercial quantity of ecstasy and trafficking amphetamine and cocaine – Co-offender’s extensive admissions to police resulted in him being sentenced on the basis of an 18 month period of offending – Wright made limited admissions to police and was sentenced on the basis of a four month period of offending – Gabriel made no admissions and was sentenced on the basis of a two month period of offending – Co-offender sentenced to total effective sentence of six years with non-parole period of four years – Appellants each sentenced to total effective sentence of four years with non-parole period of three years – Crown conceded specific error as judge failed to properly exercise discretion to take into account pecuniary penalty orders made against appellants - Whether sentences manifestly excessive – Parity – Whether appellants sentenced on facts admitted by co-offender but not admissible as against them - Extent of appellants’ prospects of rehabilitation – Further material as to rehabilitation provided on the appeal – Reduced non-parole appropriate in each case – Appeals allowed – Appellants re-sentenced to total effective sentence of four years with non-parole period of two and a half years – Sentencing Act 1991, s 5(2A).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant Wright	Mr P J Billings	Criminal Defence Associates
For the Appellant Gabriel	Mr P G Priest Q C with Mr T Kassimatis	Revill & Papa Lawyers

ASHLEY JA:
KELLAM JA:
HANSEN AJA:

Introduction

These are appeals against sentence by Garry Leigh Wright and Antonios Gabriel. They, together with a co-offender Wairau, were each sentenced to terms of imprisonment in the County Court at Ballarat on 18 April 2007, having pleaded guilty to several counts of drug trafficking on a single presentment. Wright and Gabriel, who were aged 25 and 27 years respectively at the time of sentence, appeal pursuant to leave granted by a judge of this Court under s 582 of the Crimes Act 1958.

Wairau pleaded guilty to counts 1, 2 and 3 on the presentment, namely trafficking in a commercial quantity of ecstasy, trafficking amphetamine, and trafficking cocaine. He was sentenced to five years’ imprisonment on count 1, three and a half years on count 2, and six months on count 3, with orders for cumulation resulting in a total effective sentence of six years’…

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 Wright; R v Gabriel

Details

AGLC: R v Wright; R v Gabriel [2008] VSCA 19
Case: [2008] VSCA 19
Decision Date: 22 February 2008

CaseChat Overview and Summary

In the case of R v Wright; R v Gabriel, the High Court of Australia considered the sentences imposed on two appellants, Wright and Gabriel, who were convicted of drug trafficking offences. Wright had also pleaded guilty to trafficking cannabis. The co-offender, who had pleaded guilty to trafficking larger quantities of ecstasy, amphetamine, and cocaine, was sentenced based on an 18-month period of offending. In contrast, Wright's sentence was based on a four-month period of offending, and Gabriel's sentence on a two-month period, despite Gabriel making no admissions to police. The co-offender received a total effective sentence of six years, with a non-parole period of four years. Wright and Gabriel each received a total effective sentence of four years, with a non-parole period of three years. The Crown conceded that the judge had failed to properly exercise the discretion to consider pecuniary penalty orders made against the appellants, leading to the argument that the sentences were manifestly excessive.

The legal issues before the court were whether the sentences were manifestly excessive, whether parity was appropriately considered in sentencing the appellants, and whether the appellants were sentenced based on facts admitted by the co-offender but not admissible as against them. Additionally, the court considered the extent of the appellants' prospects of rehabilitation, especially in light of further material provided on appeal. The court examined whether the sentences imposed were appropriate given the circumstances and the nature of the offending. It also had to consider whether the sentences adequately reflected the differences in the appellants' roles and admissions in relation to the offending.

The court found that the original sentences were manifestly excessive and did not adequately reflect the differences in the appellants' roles and admissions. The court held that the sentences should have taken into account the pecuniary penalty orders made against the appellants, which the judge had failed to do. Furthermore, the court found that the appellants were sentenced based on facts admitted by the co-offender, which were not admissible as against them, and that this impacted the overall sentencing process. The court also considered the appellants' prospects of rehabilitation, particularly in light of the additional material provided on appeal. As a result, the court reduced the non-parole periods in each case to reflect the appropriate level of punishment. The appeals were allowed, and the appellants were re-sentenced to a total effective sentence of four years, with a non-parole period of two and a half years each.

The court's decision underscores the importance of properly considering all relevant factors in sentencing, including pecuniary penalty orders, the role and admissions of each offender, and prospects of rehabilitation. The court's ruling also highlights the need for parity in sentencing to ensure that similar offences are punished appropriately in relation to each offender's involvement. The reduced sentences reflect a more balanced approach to the appellants' circumstances and the nature of their offending.

Orders