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Sharbell v The Queen

Sharbell v The Queen

Case [2018] VSCA 324 6 December 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0267

EDMOND SHARBELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2018
DATE OF JUDGMENT:	6 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 324
JUDGMENT APPEALED FROM:	[2017] VCC 1918 (Judge Dyer)

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CRIMINAL LAW – Appeal – Sentence – Attempt – Impossibility – Attempt to traffick commercial quantity of 1,4-butanediol – Firearms offences – Driving whilst disqualified, dealing with property suspected of being proceeds of crime – Sentence of 5 years and 3 months’ imprisonment – Whether culpability reduced because product unsaleable – Whether judge took into account plea of guilty – Whether judge took into account likely effect of incarceration on applicant’s psychological state – Whether sentence manifestly excessive – Changed sentencing practice for trafficking commercial quantity – Gregory (a pseudonym) v The Queen [2017] VSCA 151 applied – Application refused.

NATURAL JUSTICE – Procedural fairness – Defence counsel submitted non-custodial penalty appropriate – Judge imposed custodial penalty – Whether judge obliged to warn of risk of custodial penalty – No denial of procedural fairness.

EVIDENCE – Expert evidence – Evidence of mental functioning – Report from forensic psychologist – Late filing of report – Plea submissions focused on physical injuries – No development of Verdins submission – No sentencing error – Importance of compliance with Practice Note – Practice Note No 1 of 2017, Sentencing Hearings: Expert Reports on Mental Functioning of Offender.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Anthony Isaacs
For the Respondent	Mr J Lewis	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA:

Summary

The applicant pleaded guilty to the attempted trafficking of three times the commercial quantity of a drug of dependence. He was sentenced to four years’ imprisonment on that charge. He was also sentenced for firearms offences and for dealing with property suspected of being the proceeds of crime.

The applicant now seeks leave to appeal against sentence on two principal grounds. The first is that the judge failed to take into account the likely effect of incarceration on his psychological state. The second is that the sentence on the trafficking charge was manifestly excessive.

For reasons which follow, we would refuse leave to appeal. As will appear, the principal health issue relied on by defence counsel on the plea concerned the applicant’s ongoing pain resulting from injuries sustained in an accident, and the associated need for physiotherapy. At the last minute, a report from a forensic psychologist was relied on, but defence counsel made only the barest of references to it in his submissions.

As this Court has emphasised, where expert evidence is to be relied on in support of a submission that one or more of the sentencing principles identified in Verdins[1] is engaged, it is the responsibility of defence counsel on the plea to be specific about the evidence relied on and to identify the way(s) in…

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 Sharbell v The Queen

Details

AGLC: Sharbell v The Queen [2018] VSCA 324
Case: [2018] VSCA 324
Decision Date: 6 December 2018

CaseChat Overview and Summary

In the case of Sharbell v The Queen, the applicant was appealing against his sentence of 5 years and 3 months’ imprisonment for various offences, including an attempt to traffic a commercial quantity of 1,4-butanediol, firearms offences, driving while disqualified, and dealing with property suspected of being proceeds of crime. The applicant argued that his culpability was reduced because the product he attempted to traffic was unsaleable, and that the judge did not properly consider the effect of incarceration on his psychological state. Additionally, the applicant claimed that the sentence was manifestly excessive due to changes in sentencing practices for trafficking commercial quantities of drugs.

The court considered whether the judge properly took into account the applicant’s plea of guilty and the likely effect of incarceration on the applicant’s psychological state. The court also examined whether the sentence was manifestly excessive in light of the changed sentencing practice for trafficking commercial quantities, as outlined in the case of Gregory (a pseudonym) v The Queen. The court found that the judge had considered the applicant’s plea of guilty and the potential impact of incarceration on the applicant’s psychological state. The court further held that the sentence was not manifestly excessive, taking into account the changed sentencing practice.

In relation to the issue of procedural fairness, the court found that there was no obligation on the judge to warn of the risk of a custodial penalty, as the defence counsel had submitted that a non-custodial penalty was appropriate. The court also considered the late filing of a report from a forensic psychologist, which provided evidence of the applicant’s mental functioning. The court held that the late filing of the report did not result in a sentencing error, as the plea submissions focused on the applicant’s physical injuries and there was no development of the submission regarding the applicant’s mental functioning. The court emphasised the importance of compliance with Practice Note No 1 of 2017, Sentencing Hearings: Expert Reports on Mental Functioning of Offender.

The application for leave to appeal was refused. The court held that the sentence was not manifestly excessive, and that there was no procedural unfairness or sentencing error in relation to the expert evidence.

Orders