Ridge v The Queen - [2013] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0094

STUART RIDGE
	Applicant
v.
THE QUEEN	Respondent

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JUDGES:	WARREN CJ and COGHLAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2013
DATE OF JUDGMENT:	7 August 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 203
JUDGMENT APPEALED FROM	DPP v Ridge (Unreported, County Court of Victoria, Judge Gaynor, 26 November 2012)

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CRIMINAL LAW – Leave to appeal against sentence – Trafficking in a drug of dependence (2 charges) – Possession of a drug of dependence (3 charges) – Using a drug of dependence – Plea of guilty – Total effective sentence of 5 years imprisonment – Non-parole period of 2 years fixed – Fresh evidence of a mitigating factor – Diagnosis of terminal cancer – Appeal allowed – New non-parole period fixed of 621 days (time served) – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann	Melasecca Kelly & Zayler
For the Respondent	Mr P Kidd SC	Mr C Hyland, Solicitor for the Office of Public Prosecutions

WARREN CJ:

I invite his Honour Coghlan JA to deliver the Court's judgment.

COGHLAN JA:

On 18 October 2012 the applicant pleaded guilty to the offences set out below and on 26 November 2012 he was sentenced accordingly.

charge on indictment
offence maximum sentence
Cumulation

1
Trafficking in a drug of dependence (methylamphetamine) [s 71AC Drugs,
Poisons and Controlled Substances Act

1981]
15 years 4 years 10 months
Base

2
Trafficking in a drug of dependence
(MDMA) [s 71AC Drugs, Poisons and

Controlled Substances Act 1981]
15 years 6 months
2 months

3
Possession of a drug of dependence (ketamine) [s 71(1)(c) Drugs, Poisons

and Controlled Substances Act 1991]
5 years 2 months
-

4 Possession of a drug of dependence
(methlyamphetamine) [s 71(1)(c) Drugs,
Poisons and Controlled Substances Act
1991] 5 years 2 months
-

5 Possession of a drug of dependence
(MDMA) [s 71(1)(c) Drugs, Poisons
and Controlled Substances Act 1991] 1 year 2 months
-

charge on indictment	offence	maximum	sentence	Cumulation
1	Trafficking in a drug of dependence (methylamphetamine) [s 71AC Drugs, Poisons and Controlled Substances Act 1981]	15 years	4 years 10 months	Base
2	Trafficking in a drug of dependence (MDMA) [s 71AC Drugs, Poisons and Controlled Substances Act 1981]	15 years	6 months	2 months
3	Possession of a drug of dependence (ketamine) [s 71(1)(c) Drugs, Poisons and Controlled Substances Act 1991]	5 years	2 months	-
4	Possession of a drug of dependence (methlyamphetamine) [s 71(1)(c) Drugs, Poisons and Controlled Substances Act 1991]	5 years	2 months	-
5	Possession of a drug of dependence (MDMA) [s 71(1)(c) Drugs, Poisons and Controlled Substances Act 1991]	1 year	2 months	-

Summary Offence Using a drug of dependence
(amphetamine) [s 75 Drugs, Poisons and
Controlled Substances Act 1991] 1 year 1 month
-

Total Effective Sentence: 5 years imprisonment

Non-Parole Period: 2 years

Pre-sentence Detention Declared: 367 days

6AAA Statement: 6 years’ imprisonment with a non‑parole period of 3 years 6 months.

Other orders:

Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958

Disposal Order pursuant to s 77(1) of the Confiscation Act 1997

The sentencing judge set out the circumstances of the offending in her sentencing remarks and I adopt those remarks:[1]

You and another man, Daniel Francis Brown, were the targets of a major drug operation called Operation Refife conducted by police in May 2011 into the sale and distribution of crystal methylamphetamine, that is ice, in and around the Bendigo region.
From March 2011, you and Brown lived together in a unit in Golden Square until August of that year when Brown moved into a…

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 Ridge v The Queen

Details

AGLC: Ridge v The Queen [2013] VSCA 203
Case: [2013] VSCA 203
Decision Date: 7 August 2013

CaseChat Overview and Summary

The case of Ridge v The Queen involved the appellant, Ridge, who had been convicted on multiple drug-related charges and sentenced to a total effective term of five years imprisonment, with a non-parole period of two years. Ridge was found guilty of trafficking in a drug of dependence on two occasions, possessing a drug of dependence on three occasions, and using a drug of dependence. The appeal concerned the sentence imposed by the court, specifically the non-parole period, and whether the trial judge should have considered fresh evidence of a mitigating factor.

The central legal issue was whether the trial judge should have taken into account the appellant's diagnosis of terminal cancer, which was disclosed after the original sentencing hearing. This raised the question of whether the trial judge had a duty to consider such mitigating evidence and whether it warranted a reduction in the non-parole period. The appeal hinged on whether the trial judge's failure to consider this mitigating factor constituted a substantial miscarriage of justice, warranting leave to appeal against sentence.

The court held that the trial judge erred in not considering the fresh evidence of the appellant's terminal cancer diagnosis. The court emphasised the importance of ensuring that all relevant mitigating factors are considered in sentencing, as it is a fundamental aspect of the justice system to provide a fair and proportionate sentence. Given that the appellant had served two years of his non-parole period and the severity of his terminal illness, the court determined that a new non-parole period should be fixed at 621 days, reflecting the time already served. The court found that the error did not raise a point of principle but acknowledged the significance of the mitigating evidence in this particular case.

The final orders of the court were to allow the appeal against sentence, reduce the non-parole period to 621 days, and direct that the appellant be released on parole eligibility on that date. The court's decision underscored the importance of considering all mitigating evidence in sentencing, even when presented after the initial hearing.

Orders