Stevens v The Queen - [2020] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0050

CARLEY STEVENS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2020
DATE OF JUDGMENT:	24 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 170
JUDGMENT APPEALED FROM:	[2020] VCC 117 (Judge Pullen)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to one charge of trafficking in a drug of dependence and one summary charge of dealing with property suspected of being the proceeds of crime – Aggregate sentence of imprisonment imposed with Community Correction Order – Whether a term of imprisonment open on summary charge – Term of imprisonment not open on summary charge – Aggregate sentence not open – Leave to appeal granted – Appeal allowed – Applicant re-sentenced – Fitzpatrick v The Queen [2016] VSCA 63, DPP v Frewstal Pty Ltd (2015) 47 VR 660 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC	Michael J Gleeson & Associates
For the Respondent	Mr N Hutton	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON JA:
WEINBERG JA:

The applicant pleaded guilty to one charge of trafficking in a drug of dependence, cannabis, and to a summary charge of dealing with property suspected of being the proceeds of crime. The property in question was a cash sum of $2,000. The trafficking offence was committed between 7 December 2016 and 3 March 2017, and the summary offence on 3 March 2017.

The charges arose from the applicant’s relationship with ‘AP’ who was charged with and stands to be tried for large scale cannabis cultivation and trafficking. AP was allegedly involved in a hydroponic set-up in a factory at Mordialloc and then allegedly trafficked the cannabis with the applicant. On 2 February 2017, police seized a total of 72 plants and 291.61 kilograms of loose drying cannabis from the Mordialloc factory.

The trafficking offence took place at premises that the applicant shared with AP in Bentleigh. The Bentleigh property was the applicant’s and AP’s residence through to March 2017. As a result of the seizure of the cannabis from the Mordialloc factory, on 3 March 2017, police searched the Bentleigh property while the applicant and AP were overseas. At the Bentleigh property police found evidence of a commercial operation in the trafficking of cannabis involving the use of the ‘dark web’ and Australia Post. Parts of the premises were used for cannabis storage and as packing and dispatch areas. The applicant (and, allegedly, AP) used a dark web homepage titled ‘RROSSDABOSS’, which revealed a history of transactions relating to cannabis sales.

Charge 1 was that between 7 December 2016 and 3 March 2017, the applicant sold cannabis. In total, 1.806 kilograms of cannabis was sold in that period for US$16,394.70. There was a further large amount of cannabis on the premises (15.69 kilograms) which represented potential sales of US$142,432.

In the bedroom on the upper level of the Bentleigh property, police located a spirax…

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 Stevens v The Queen

Details

AGLC: Stevens v The Queen [2020] VSCA 170
Case: [2020] VSCA 170
Decision Date: 24 June 2020

CaseChat Overview and Summary

Stevens was convicted for trafficking in a drug of dependence and dealing with property suspected of being the proceeds of crime. The case was heard by the Court of Appeal, which was required to determine whether the sentence imposed was appropriate. The central issue was whether an aggregate sentence, which combined both offences, could be imposed when one of the offences was a summary charge. The Court of Appeal held that an aggregate sentence could not be imposed in this case as the summary charge did not permit a term of imprisonment.

The court found that under the Sentencing Act, a summary offence could not attract a term of imprisonment unless it was expressly permitted by the statute. As the summary charge did not permit imprisonment, the aggregate sentence was not legally open to the court. The Court of Appeal also referred to the cases of Fitzpatrick v The Queen and DPP v Frewstal Pty Ltd, which supported the view that an aggregate sentence was inappropriate where one of the offences did not permit imprisonment. Given this error, the appeal was allowed, and the applicant was re-sentenced.

The Court of Appeal reduced the applicant's sentence by imposing terms of imprisonment and fines for each offence separately. The Court concluded that the initial aggregate sentence was improper and that the separate offences should be dealt with individually, ensuring that the sentence imposed complied with the statutory requirements.

Orders