Short v The Queen - [2016] VSCA 210

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0103

JESSICA SHORT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2016
DATE OF JUDGMENT:	7 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 210
JUDGMENT APPEALED FROM:	DPP v Short [2016] VCC 512 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Conviction – On summary charges being indictable offences, transferred by Magistrates’ Court to County Court – Guilty pleas – Sentenced – No power to transfer – Convictions set aside – Summary charges transferred to Magistrates’ Court.

CRIMINAL LAW – Appeal – Sentence – Trafficking simpliciter in methylamphetamine and other summary charges – Sentenced to 8 years for trafficking and a total effective sentence of 8 years and 6 months and a non-parole period of 5 years and 6 months – Manifest excess – Resentenced to 6 years and 6 months on trafficking charge and a total effective sentence overall of 6 years and 10 months and a non-parole period of 4 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms M Fox	Garde Wilson Lawyers
For the Crown	Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
HANSEN JA:

On 12 April 2016, the applicant (now aged 26) pleaded guilty to trafficking in a drug of dependence[1] and five related summary offences consisting of possession of a drug of dependence, possession of a general category handgun by a non-prohibited person, possession of a prohibited weapon and two charges of dealing with property suspected of being proceeds of crime. Following a plea on 12 April 2016, the applicant was sentenced on 29 April 2016 as follows:
[1]This offence was alleged on a Giretti basis: R v Giretti (1986) 24 A Crim R 112.

Charge on Indictment Offence Maximum Sentence Cumulation

1 Trafficking in a drug of dependence (methylamphetamine) [Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’) s 71AC] 15 years’ imprisonment
[DPCSA s 71AC] 8 years Base

Summary Charge 3 Possession of a drug of dependence (cannabis) [DPCSA s 73] 5 penalty units (trafficking excluded) [DPCSA s 73 (1)(a)];
5 years’ imprisonment or 400 penalty units or both [DPCSA s 73 (1)(c)] 9 months 1 month

Summary Charge 8 Possession of a general category handgun – non-prohibited person [Firearms Act 1996 s 7(1)] 240 penalty units or 4 years’ imprisonment
[Firearms Act 1996 s 7(1)] 6 months 1 month

Summary Charge 9 Possession of a prohibited weapon (Taser) [Control of Weapons Act 1990 s 5AA]
240 penalty units or 2 years’ imprisonment [Control of Weapons Act 1990 s 5AA]
3 months Nil

Summary Charge 14 Dealing with property suspected of being proceeds of crime (CCTV camera packs, chainsaw, computer equipment, jewellery and $3000) [Crimes Act 1958 s 195] 2 years’ imprisonment [Crimes Act 1958 s 195] 9 months 2 months

Summary Charge 21 Dealing with property suspected of being proceeds of crime ($63,125)
[Crimes…

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 Short v The Queen

Details

AGLC: Short v The Queen [2016] VSCA 210
Case: [2016] VSCA 210
Decision Date: 7 September 2016

CaseChat Overview and Summary

The appellant was convicted of multiple charges in the Magistrates’ Court and subsequently transferred to the County Court by the Magistrates’ Court. He pleaded guilty to all charges, which included trafficking in methylamphetamine and other summary offences, and was sentenced by the County Court. The appellant appealed against his conviction and sentence. The appeal focused on two main issues: the legality of the Magistrates’ Court transferring the charges to the County Court and the appropriateness of the sentence imposed.

The court examined whether the Magistrates’ Court had the authority to transfer summary charges to the County Court for trial and sentencing. It was established that such transfers were not permissible under the law, and the convictions obtained in the County Court were therefore nullified. The court then considered the appropriate course of action, which was to transfer the summary charges back to the Magistrates’ Court. Regarding the sentence, the court found the original sentence to be manifestly excessive, particularly in light of the appellant’s guilty plea and cooperation. Consequently, the court resentenced the appellant to a total effective sentence of 6 years and 10 months, with a non-parole period of 4 years and 3 months.

The appeal was allowed, the convictions set aside, and the matter remitted to the Magistrates’ Court for re-sentencing. The court concluded that the County Court had no jurisdiction to try or sentence the appellant on the summary charges, and that the original sentence was manifestly excessive. The appellant's convictions were quashed and the matter was returned to the Magistrates' Court for re-sentencing on the summary charges. The resentencing was to be conducted in accordance with the court’s directions.

Orders