Legal Research
Cases
Roach v The Queen

Roach v The Queen

Case [2020] VSCA 205 18 August 2020

Appeal

Sentencing

Breach of Community Correction Order

Cumulative Sentencing

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0193

MARK ROACH	Appellant
v
THE QUEEN	Respondent

---

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)

---

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).

---

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 —

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 Roach v The Queen

Details

AGLC: Mark Roach v The Queen [2020] VSCA 205
Case: [2020] VSCA 205
Decision Date: 18 August 2020

CaseChat Overview and Summary

Roach appealed against his conviction and sentence, arguing that the sentencing judge made an error by applying section 5(2HC) of the Sentencing Act 1991. The appellant was found guilty of trafficking in a commercial quantity of a drug of dependence (1,4–Butanediol), negligently dealing with proceeds of crime, intentionally damaging property, and possessing drugs of dependence. The Supreme Court of Victoria was tasked with assessing the appellant's arguments and determining the appropriate sentence.

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