Smith v The Queen

[2011] VSCA 185

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2010 0102

ALLAN JOHN SMITH

Appellant

v

THE QUEEN

Respondent

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JUDGES	MAXWELL ACJ and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 June 2011
DATE OF JUDGMENT	9 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 185
JUDGMENT APPEALED FROM	R v Smith (Unreported, County Court of Victoria, Judge M P Bourke, 18 March 2010)

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CRIMINAL LAW – Appeal against sentence – No point of principle – Appeal dismissed – Leave to appeal on further ground refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Martin Irwin & Richards Lawyers
For the Respondent	Mr M I Roper	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. I will invite Lasry AJA to deliver the first judgment.

LASRY AJA:

1. On 18 March 2010 the appellant was sentenced in the County Court on three counts of trafficking in a drug of dependence.  Count 1 was that between 8 November 2005 and 10 February 2006, he trafficked in a drug of dependence namely amphetamine.  Count 2 was that between the same dates he trafficked in a drug of dependence namely Cannabis L.  Count 3 was that between the same dates he trafficked in a drug of dependence, namely MDMA.

1. The appellant had been presented on the basis that these offences were committed jointly with Aaron James Starr as well as others who came to the attention of police during their investigation. 

1. The sentence imposed on the appellant was an aggregate sentence on the three counts of three and a half years' imprisonment. The sentencing judge set a minimum term of two years before the appellant would be eligible to apply for parole. Pre‑sentence detention was declared at 17 days and pursuant to s 6AAA of the Sentencing Act1991 (Vic), his Honour indicated that without the plea of guilty, the appellant would have been sentenced to a total effective aggregate term of five and a half years with a minimum term of four years.

1. On 12 April 2010 the appellant gave notice of application for leave to appeal against the sentence imposed on the ground that the sentence was manifestly excessive.  A notice of appeal dated 14 April 2010 set out three grounds of appeal, the substance of which were:

(1)       that the sentences were manifestly excessive;

(2)       that the sentencing judge was in error in imposing the same aggregate sentence on the appellant and Starr; and

(3)       that there was a manifest disparity in the sentence imposed on the appellant with that imposed on the co‑offender, Donna Gay Pierson.

1. On 10 December 2010 the appellant applied for leave to appeal. After consideration, pursuant to s 315 of the Criminal Procedure Act 2009, Nettle JA granted leave in relation to what was then ground 2 of the appeal on the particular basis that the sentencing judge may have been in error in the manner in which he dealt with the effect that a physical injury may have on the…