Scott v The Queen - [2011] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0084

ANTHONY SCOTT	Applicant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 April 2011
DATE OF JUDGMENT	20 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 108
JUDGMENT APPEALED FROM	R v Scott (Unreported, County Court of Victoria, Judge Howard, 23 March 2010)

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CRIMINAL LAW – Application for leave to appeal against sentence – ‘Operation Jedi’ – Giretti trafficking in 210.2 grams of methylamphetamine in mixed substance – Sentenced to three years’ imprisonment with a minimum of two years – Lengthy criminal record – Offending occurred shortly after release on parole – Sentence not manifestly excessive – Open to find offending ‘wholesale, sophisticated and energetic’ – Criticism of observation that as an addict ‘so much the worse is your offending’ – Past injuries sustained by applicant not ignored or overlooked – Time served for breach of parole considered – Open to find applicant’s offending for profit and greed – Leave to appeal against sentence refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr S A Moglia	C Marshall & Associates
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I have had the advantage of reading the reasons of Weinberg JA in draft. I agree with his Honour that leave to appeal should be refused

The applicant could make legitimate complaint about some aspects of the judge’s sentencing remarks. So much is revealed by Weinberg JA’s discussion of grounds 2, 3 and 8. But in this case that does not mean that the application should be granted and the appeal allowed. I am not satisfied that a different sentence should be imposed.[1]

[1]See s 281(1)(b) Criminal Procedure Act 2009.

WEINBERG JA:

The applicant pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence, namely methylamphetamine. After plea hearings on 30 June 2009 and 9 September 2009, he was sentenced some months later, on 23 March 2010, to a term of three years’ imprisonment. A non-parole period of two years was fixed. The maximum penalty for trafficking in a drug of dependence of less than the commercial quantity is 15 years’ imprisonment.[2]
[2]Drugs, Poisons and Controlled Substances Act 1981 s 71AC.

The applicant was originally scheduled to be sentenced on 19 November 2009, along with his wife, Michelle Scott, and one Cheryl Beckerton. On that day he failed to appear. A warrant was issued for his arrest, and the applicant was eventually apprehended on 18 March 2010.

The circumstances surrounding the applicant’s offending were set out in an agreed summary of facts. Put simply, the applicant was involved in what can be described as ‘Giretti’ trafficking of methylamphetamine between 5 December 2005 and 16 January 2006. This, of course, meant that he was engaged in the business, between dates, of selling methylamphetamine for gain.

It seems that while the applicant was in prison in 2005,…

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 [2011] VSCA 108
Case: [2011] VSCA 108
Decision Date: 20 April 2011

CaseChat Overview and Summary

In the matter of Scott v The Queen, the applicant appealed against the sentence imposed by the Supreme Court of Victoria, contending that the sentence was manifestly excessive. The applicant, who had a lengthy criminal record, was involved in trafficking a mixed substance containing 210.2 grams of methylamphetamine under the codename ‘Operation Jedi’. He was sentenced to three years’ imprisonment with a minimum of two years, which he argued was disproportionately harsh. The application for leave to appeal against the sentence was before the Court of Appeal.

The primary legal issue the Court of Appeal had to address was whether the sentence imposed was manifestly excessive. The Court examined the nature and circumstances of the offence, the applicant’s criminal history, and the principle that sentences should not be punitively disproportionate. Additionally, the Court considered whether the primary judge had appropriately taken into account the applicant’s addiction and prior injuries when determining the sentence.

The Court of Appeal held that the sentence was not manifestly excessive. It found that the primary judge had appropriately considered the sophisticated and energetic nature of the applicant’s offending, which was for profit and greed. The Court emphasised that the observation about the applicant’s addiction did not diminish the seriousness of the offending. Furthermore, the Court noted that the applicant’s prior injuries were acknowledged but did not mitigate the need for a punitive sentence. The Court also considered the time the applicant had already served for breaching parole. Consequently, the Court concluded that the sentence was not manifestly excessive and refused the applicant leave to appeal against the sentence.

Orders