Roxburgh v The Queen - [2021] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0071

EVAN JOHN ROXBURGH	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, T FORREST and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 May 2021
DATE OF JUDGMENT:	24 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 181
JUDGMENT APPEALED FROM:	[2020] VCC 265 (Judge Hassan)

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CRIMINAL LAW – Appeal – Sentence – Drug trafficking – Trafficking by possession for sale – Trafficking in commercial quantity – 1.5 times CQ threshold – Sentence 4 years and 6 months – Traffickable quantity of second drug – Sentence 1 year – Total effective sentence 4 years and 9 months, non-parole period 3 years and 6 months – Whether manifestly excessive – Prior convictions for trafficking – Offences committed while on bail and on a community correction order – Need for specific and general deterrence – Guarded prospects of rehabilitation – Sentence within range – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G J Barns SC	Michael Gleeson & Associates
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
T FORREST JA
SIFRIS JA:

On 17 March 2020, the appellant pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity (methylamphetamine) and one charge of trafficking in a drug of dependence (1,4-Butanediol). He was also dealt with for a number of related summary offences. He was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Trafficking in commercial quantity of drug of dependence (methylamphetamine)[1] 25 years 4 years and 6 months Base

2 Trafficking in drug of dependence (1,4-Butanediol)[2] 15 years 1 year 3 months

Related summary offence

5 Dealing with property suspected of being proceeds of crime[3] 2 years 1 month —

7 Committing indictable offence while on bail[4] 3 months Convicted and discharged —

8 Contravening conduct conditions of bail[5] 3 months 1 month —

Total effective sentence: 4 years and 9 months’ imprisonment

Non-parole period: 3 years and 6 months

Pre-sentence detention declared: 383 days

Section 6AAA statement: 7 years with a non-parole period of 5 years

Ancillary orders: Forfeiture and disposal order

[1]Pursuant to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[2]Pursuant to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Pursuant to s 195 of the Crimes Act 1958.
[4]Pursuant to s 30B of the Bail Act 1977.
[5]Pursuant to s 30A(1) of the Bail Act 1977.

The appellant was granted leave to appeal against sentence on the following grounds:

Ground 1:The learned sentencing judge erred in finding that the principles outlined in Gregory (a pseudonym) v The Queen in respect of cases of trafficking in a commercial quantity approaching the large commercial quantity threshold had application in this matter.[6]
Ground 2:The individual sentences imposed, total effective sentence and non-parole period were, in all of the circumstances of this case, manifestly excessive.

[6]Citations…

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 Roxburgh v The Queen

Details

AGLC: Roxburgh v The Queen [2021] VSCA 181
Case: [2021] VSCA 181
Decision Date: 24 June 2021

CaseChat Overview and Summary

Roxburgh appealed against his conviction and sentence for drug trafficking, arguing that the total sentence was manifestly excessive. The case was heard in the High Court of Australia. The appellant was found in possession of a commercial quantity of methamphetamine and a traffickable quantity of cocaine. He was sentenced to 4 years and 6 months for the methamphetamine offence and 1 year for the cocaine offence, making a total effective sentence of 4 years and 9 months, with a non-parole period of 3 years and 6 months.

The primary legal issue was whether the sentence was manifestly excessive, considering the appellant's prior convictions for trafficking, the fact that the offences were committed while on bail and under a community correction order, and the need for specific and general deterrence. The court also considered the appellant's prospects for rehabilitation.

The court found that the sentence was within the appropriate range for the offences committed. The appellant's prior convictions and the seriousness of the current offences warranted a significant sentence to ensure specific and general deterrence. Additionally, the court noted that the appellant's prospects for rehabilitation were guarded. Therefore, the appeal was dismissed. The High Court upheld the original sentence, finding that it was not manifestly excessive given the circumstances of the case.

Orders