Ross v The Queen - [2022] VSCA 149

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0054

DANIEL ROSS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2022
DATE OF JUDGMENT:	29 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 149
JUDGMENT APPEALED FROM:	DPP v Ross [2022] VCC 400 (Judge Gwynn)

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CRIMINAL LAW – Appeal – Sentence – Trafficking methylamphetamine, reckless conduct endangering serious injury and associated charges – Sentence 2 years and 9 months’ imprisonment with 22 months non-parole – Whether judge erred in failing to find that the applicant experienced profound childhood deprivation – Whether reduced moral culpability – Leave to appeal refused – Bugmy v The Queen (2013) 249 CLR 571; Veen v The Queen [No 2] (1988) 164 CLR 465 considered.

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Counsel
Applicant:		Mr J Connolly
Respondent:		Ms D Piekusis QC
Solicitors
Applicant:	Kurnai Legal Practice
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MACAULAY JA:

Introduction

The applicant, now aged 35 years,[1] pleaded guilty before a judge in the County Court to two charges of trafficking in a drug of dependence, methylamphetamine[2] (charges 1 and 4); one charge of reckless conduct endangering serious injury[3] (charge 2); one charge of theft[4] (charge 3); and one charge of possession of a drug of dependence[5] (charge 5). He also pleaded guilty to the related summary offences of failing to stop vehicle on police request[6] (summary charge 4); failing to stop vehicle after an accident[7] (summary charge 4); dealing with property suspected to be the proceeds of crime[8] (summary charge 8); committing indictable offence whilst on bail[9] (summary charges 10 and 21); contravening a conduct condition of bail[10] (summary charge 11); possessing a prohibited weapon[11] (summary charge 19); unlicensed driving[12] (summary charge 23); and dangerous driving[13] (summary charge 24). The applicant also fell to be sentenced for contravening a Community Correction Order (‘CCO’) – by further offending and non-compliance – imposed by the County Court on 2 October 2019.
[1]His date of birth is 19 June 1987.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71 AC. The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 23. The maximum penalty is 5 years’ imprisonment.
[4]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.
[5]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is one year’s imprisonment.
[6]Road Safety Act 1986, s 64A. The maximum penalty for a subsequent offence is one year’s imprisonment.
[7]Road Safety Act 1986, s 61(1)(a). The maximum penalty is 14 days’ imprisonment.
[8]Crimes Act 1958, s 195. The maximum penalty is 2 years’ imprisonment.
[9]Bail Act 1977, s 30B. The maximum penalty is 3 months’ imprisonment.
[10]Bail Act 1977, s 30A(1). The maximum penalty is 3 months’ imprisonment.
[11]Control of Weapons Act 1990, s 5AA. The maximum penalty is 2 years’ imprisonment.
[12]Road Safety Act 1986

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 Ross v The Queen

Details

AGLC: Daniel Ross v The Queen [2022] VSCA 149
Case: [2022] VSCA 149
Decision Date: 29 July 2022

CaseChat Overview and Summary

The appellant, Ross, was convicted of trafficking methylamphetamine, reckless conduct endangering serious injury and associated charges. He was sentenced to 2 years and 9 months’ imprisonment with a non-parole period of 22 months. Ross appealed the sentence, contending that the primary judge erred in failing to find that he experienced profound childhood deprivation. He argued that this deprived him of the capacity to exercise self-control and thus reduced his moral culpability. The central legal issues were whether the primary judge erred in not considering the mitigating factor of profound childhood deprivation, and if this error impacted the overall assessment of Ross's culpability and the sentence imposed.

The court examined the principles in Bugmy v The Queen and Veen v The Queen, which require consideration of mitigating factors such as childhood deprivation in sentencing. The court held that the primary judge did consider the appellant’s background, including his troubled upbringing, and appropriately weighed these factors against the seriousness of the offences. The court found that the primary judge did not err in not attributing the sentence to profound childhood deprivation, as there was no clear evidence that Ross’s background significantly impaired his moral culpability. The court held that the sentence was within the appropriate range, taking into account all relevant mitigating and aggravating factors.

The appeal was dismissed. The original sentence of 2 years and 9 months’ imprisonment with a non-parole period of 22 months was upheld. The court concluded that the primary judge had correctly exercised their discretion in sentencing, and there was no basis to interfere with the sentence imposed.

Orders