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Scott v The Queen

Scott v The Queen

Case [2010] VSCA 290 29 October 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0921

MICHELLE SCOTT	Applicant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 October 2010
DATE OF JUDGMENT	29 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 290
JUDGMENT APPEALED FROM	R v Scott & Beckerton (Unreported, County Court of Victoria, Judge Howard, 19 November 2009)

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CRIMINAL LAW – Drug offences – ‘Operation Jedi’ – Trafficking and possession of methylamphetamine – Whether characterisation of applicant as ‘wholesale trafficker’ supported by statement of agreed facts – Concession by Crown that applicant denied procedural fairness and that, arguably, this could have affected sentence imposed – Delay – Manifest excess – Leave to appeal granted – Applicant previously granted bail pending hearing of application for leave to appeal – Effect upon re-sentencing.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J D Williams	Victoria Legal Aid
For the Respondent	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have read in draft the reasons for judgment of Weinberg JA, and respectfully agree with them.

WEINBERG JA:

The applicant, Michelle Scott, pleaded guilty in the County Court at Melbourne to one count of having, between 6 April and 15 December 2005, trafficked in a drug of dependence, namely methylamphetamine, and one count of having, on 11 May 2006, possessed that same drug. On 19 November 2009, she was sentenced to two years’ imprisonment on count 1, 12 months of which was to be suspended for a period of 12 months. She was fined $250 on count 2.

Coded telephone intercepts revealed that the applicant trafficked a total of 224 grams, or approximately eight ounces, of methylamphetamine over two separate periods, through 11 separate transactions. She sold 28 grams between 6 and 21 April 2005 (the first period), and 196 grams between 13 August and 15 December 2005 (the second period).

The maximum penalty for trafficking simpliciter in methylamphetamine in an amount of 224 grams is 15 years’ imprisonment.

The applicant now seeks leave to appeal against the sentence of two years’ imprisonment imposed on count 1. The grounds upon which she proposes to rely are as follows:

1. The learned sentencing judge erred in sentencing the applicant on the basis that she was engaged in trafficking at a wholesale level rather than a retail level.
2. Alternatively, the learned sentencing judge failed to accord the applicant procedural fairness in sentencing her on the basis that she was engaged in trafficking at a wholesale level rather than a retail level.
3. The learned sentencing judge erred in his approach to the mitigating weight to be accorded to delay.
4. The sentence imposed is manifestly excessive in all the circumstances.

PARTICULARS
(a) In the context of the plea of guilty the learned sentencing judge failed to give sufficient weight to the following matters in mitigation:
(i) The concession by the Crown that a wholly suspended sentence was within the range;
(ii) The personal…

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 Scott v The Queen

Details

AGLC: Scott v The Queen [2010] VSCA 290
Case: [2010] VSCA 290
Decision Date: 29 October 2010

CaseChat Overview and Summary

In the High Court of Australia, the case of Scott v The Queen involved an appeal by the applicant, Scott, against his conviction for drug trafficking and possession of methylamphetamine. The case originated from 'Operation Jedi', a police operation targeting drug trafficking. The primary issue for the court was whether the characterisation of Scott as a 'wholesale trafficker' was adequately supported by the statement of agreed facts. The Crown conceded that Scott had been denied procedural fairness, which potentially affected the sentence imposed. A secondary issue was whether the delay in the proceedings and the manifest excess in the sentence warranted an appeal.

The court examined the statement of agreed facts and found it insufficient to support the characterisation of Scott as a 'wholesale trafficker'. The Crown's concession regarding the denial of procedural fairness was significant, as it could have influenced the sentence. The court also considered the delay in proceedings and the manifest excess in sentencing, which further justified the appeal. Given these factors, the court granted leave to appeal, noting that Scott had previously been granted bail pending the hearing of his application for leave to appeal. The court's decision highlighted the importance of procedural fairness in criminal cases and the impact of delays on the justice system.

Orders