SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0193
| MARK ROACH | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 July 2020 |
| DATE OF JUDGMENT: | 18 August 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 205 |
| JUDGMENT APPEALED FROM: | [2019] VCC 145 (Judge Dawes) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in commercial quantity of drug of dependence (1,4–Butanediol) – Negligently dealing with proceeds of crime – Intentionally damaging property – Possessing drugs of dependence – Total effective sentence of 3 years and 6 months’ imprisonment with non-parole period of 2 years – Crown concession of sentencing error – Judge sentenced appellant under misapprehension that s 5(2HC) of Sentencing Act 1991 applied – Whether different sentence should be imposed – Serious offending – Relevant prior convictions – Offending occurred while appellant serving Community Correction Order for prior charge of trafficking – Sentencing judge’s error immaterial – No different sentence warranted – Appellant subsequently offended while in custody – Charge of recklessly causing injury dealt with in Magistrates’ Court – Sentence of 6 months cumulated on County Court sentence – No appellate jurisdiction to review Magistrates’ Court sentence – Appeal dismissed – Criminal Procedure Act2009 ss 278, 281, Sentencing Act1991 s 5(2H).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Ms C A Boston | Furstenberg Law |
| For the Respondent: | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA:
On 10 September 2018, the appellant, Mark Roach, pleaded guilty after a contested committal hearing in the Melbourne Magistrates’ Court to one charge of trafficking in a drug of dependence in a commercial quantity (1,4–Butanediol), one charge of criminal damage, one charge of negligently dealing with the proceeds of crime, and six charges of possessing, in small quantities, a number of drugs of dependence. He was also dealt with for a related summary offence of unauthorised possession of a sch 4 poison. The matter proceeded by way of a straight hand-up brief. On 30 January 2019, the plea in mitigation was heard in the County Court at Melbourne.
On 15 February 2019, the appellant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in commercial quantity of drug of dependence (1,4‑Butanediol) [s 71AA(1) — Drugs, Poisons and Controlled Substances Act 1981] 25 years 3 years and 3 months Base 2 Intentionally damaging property [s 197(1) — Crimes Act 1958] 10 years 14 days — 3 Negligently dealing with proceeds of crime [s 194(4) — Crimes Act 1958] 5 years 6 months 3 months 4 Possessing drug of dependence (diazepam) [s 73(1)(b) — Drugs, Poisons and Controlled Substances Act 1981] 1 year 2 months — 5 Possessing drug of dependence (cocaine) [s 73(1)(b) — Drugs, Poisons and Controlled Substances Act 1981] 1 year 2 months — 6 Possessing drug of dependence (tetrahydrocannabinol) [s 73(1)(b) Drugs, Poisons and Controlled Substances Act 1981] 1 year 2 months —
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- AGLC
- Mark Roach v The Queen [2020] VSCA 205
- Case
- [2020] VSCA 205
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the sentencing judge's error in applying section 5(2HC) of the Sentencing Act 1991 warranted a different sentence. The court also needed to consider the appellant's criminal history, the nature of the offending, and whether the appellant had offended while serving a Community Correction Order for a prior charge of trafficking. Additionally, the court needed to address the appellant's subsequent offending while in custody and whether it was appropriate to cumulatively sentence the appellant for both the County Court and Magistrates’ Court charges.
The court found that the sentencing judge's error in applying section 5(2HC) of the Sentencing Act 1991 was immaterial, as it did not result in a different sentence being warranted. The court emphasised the seriousness of the appellant's offending, which occurred while he was serving a Community Correction Order for a prior charge of trafficking. Furthermore, the court noted that the appellant had subsequently offended while in custody, and the sentence for the Magistrates' Court charge was cumulative to the County Court sentence. However, the court held that it did not have the appellate jurisdiction to review the Magistrates' Court sentence. Consequently, the appeal was dismissed.
Orders
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Background
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