13 and 22 April 2010 (supplementary submissions filed 28 and 29 April 2010)
DATE OF JUDGMENT:
28 October 2010
MEDIUM NEUTRAL CITATION:
[2010] VSCA 287 First Revision: 2 March 2012, [56]
JUDGMENT APPEALED FROM:
R v Scerri (Unreported, County Court of Victoria, Judge Lacava, 12 November 2008)
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to State offence and Commonwealth offence – Trafficking in large commercial quantity of drug of dependence (State) – Importing commercial quantity of ingredient for drug manufacture (Cth) – Total effective sentence 11 years, non-parole period 8 years – Whether sentence accorded with judge’s stated intention – Co-operation with authorities – Factors relevant to discount for co-operation – Parity – Co-offender given lenient sentence – Considerations of equal treatment paramount – Re-sentenced – Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71; Criminal Code Act 1995 (Cth) s 307.11(1).
CRIMINAL LAW – Appeal – Sentence – Guilty plea – Statutory requirement for sentencing judge to state sentence which would have been imposed if offender had pleaded not guilty – Whether requirement applicable to sentencing for Commonwealth offences – Whether stated discount for plea of guilty can give rise to separate ground of appeal – Sentencing Act 1991 (Vic) s 6AAA.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr M J Croucher with Mr K J Dernelley
Slades & Parsons
For the Crown (Vic)
Mr T Gyorffy
Mr C Hyland, Solicitor for Public Prosecutions
For the Crown (Cth)
Mr G Meredith
Commonwealth Director of Public Prosecutions
MAXWELL P
BUCHANAN JA:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing a count of trafficking in not less than a large commercial quantity of methylamphetamine, contrary to the provisions of s 71 of the VictorianDrugs, Poisons and Controlled Substances Act 1981 (Vic) (the ‘State offence’), and to an indictment charging that the appellant imported a commercial quantity of phenylacetic acid believing that another person intended to use that substance to manufacture a controlled drug, contrary to the provisions of s 307.11(1) of the Criminal Code Act 1995 (Cth) (the ‘Commonwealth offence’).
After a plea, the appellant was sentenced to be imprisoned – on the State offence – for a term of eight years with a minimum term of six years before he was to be eligible for parole and – on the Commonwealth offence – for a term of five years with a non-parole period of two years. The sentencing judge directed that the sentence imposed on the Commonwealth offence was to commence upon the expiration of the non-parole period of the State sentence, producing a total effective sentence of 11 years’ imprisonment, with a minimum term of eight years’ imprisonment.
The appellant has been granted leave to appeal against the sentence by a single judge of…
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.
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AGLC
Scerri v The Queen [2010] VSCA 287
Case
[2010] VSCA 287
Decision Date
CaseChat Overview and Summary
In the matter of Scerri v The Queen, the High Court was called to consider the appellant's appeal against his sentence. The appellant, having pleaded guilty to state and federal offences related to drug trafficking, received an 11-year sentence with an 8-year non-parole period. The primary dispute revolved around the fairness and appropriateness of the sentence, particularly regarding the discount applied for the appellant's cooperation with authorities and the need for parity in sentencing between co-offenders.
The court had to address several key legal issues. Firstly, it had to determine if the sentence accorded with the judge's stated intention, considering the appellant's cooperation with authorities. Secondly, the court examined the factors relevant to the discount for cooperation, and the principle of parity, especially since a co-offender had received a more lenient sentence. Additionally, the court considered whether the statutory requirement for a sentencing judge to state the sentence that would have been imposed if the offender had pleaded not guilty applied to sentencing for Commonwealth offences and if the stated discount for a plea of guilty could give rise to a separate ground of appeal.
In delivering its judgment, the court found that the sentencing judge had failed to properly apply the principle of parity, as the co-offender had received a more lenient sentence despite similar culpability. The court also noted that the discount for cooperation was not adequately considered. Consequently, the court determined that the sentence did not align with the judge's stated intentions and ordered a re-sentencing. The court clarified that the statutory requirement for stating an alternative sentence in the case of a guilty plea applied to both state and federal offences, but the stated discount did not constitute a separate ground of appeal. The appellant was re-sentenced, taking into account the principles of parity and proper consideration of cooperation.
The final orders of the court were that the appeal be allowed, the original sentence set aside, and the matter remitted to the trial judge for re-sentencing. The re-sentencing was to consider the principle of parity and appropriately apply the discount for cooperation, ensuring that the sentence accorded with the judge's stated intention and was fair and just.