Sumner v The Queen - [2010] VSCA 298

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0873

LAURENCE JOSEPH SUMNER

THE QUEEN

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JUDGES:	BUCHANAN, ASHLEY and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 October 2010
DATE OF JUDGMENT:	8 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 298
JUDGMENT APPEALED FROM:	R v Laurence Joseph Sumner (Unreported, County Court of Victoria, Judge Howard 24 October 2008)

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CRIMINAL LAW – Drug trafficking – Withdrawal of admission by former solicitor for accused – Trial judge not required to direct the jury that the solicitor may have misunderstood his instructions – Charge to jury not unbalanced – Prosecutor cross-examined the accused as to his failure to call a witness – Onus of proof not reversed.

CRIMINAL LAW – Sentence – Ill health of offender – Sentencing judge failed to take into account that imprisonment would be a greater burden for offender by reason of his state of health – offender re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	C Marshall & Associates
For the Respondent	Mr P N Rose SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

After a trial in the County Court, the applicant was found guilty on a count of trafficking in a drug of dependence, phenyl-2-propanone (count 1), a count of possession of a drug of dependence, methylamphetamine (count 2) and a count of possession of substances, equipment and documents for the purpose of trafficking in a drug of dependence (count 3).

A plea was conducted and the applicant was sentenced to be imprisoned for a term of eight years on count 1, for a term of 12 months on count 2 and for a term of four years on count 3. It was ordered that six months of the sentence on count 2 and one-and-a-half years of the sentence on count 3 were to be cumulated upon each other and upon the sentence upon count 1. The total effective sentence was ten years’ imprisonment. It was ordered that the applicant serve a term of seven years’ imprisonment before he was to be eligible for parole.

The applicant seeks leave to appeal against conviction and sentence.

The Crown case may be shortly stated. In the early hours of a winter’s day police officers executed a search warrant at a country property of some 125 acres at Christmas Hills.

Two men escaped into the bush. The applicant was discovered by police leaving a house on the premises. He was arrested.

Police found a locked drug laboratory in the shed next to the house. The key to the laboratory was hanging up in the kitchen of the house. In the laboratory were two vessels in which a mixture of liquids and solids was being cooked. The mixture was found to contain 792 grams of pure phenyl-2-propanone, a precursor for the manufacture of methylamphetamine and amphetamine (count 1). The trafficable quantity of phenyl-2-propanone was 2 grams. One of the ingredients of phenyl-2-propanone is phenyl acetic acid, which has…

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 Sumner v The Queen

Details

AGLC: Sumner v The Queen [2010] VSCA 298
Case: [2010] VSCA 298
Decision Date: 8 December 2010

CaseChat Overview and Summary

In the matter of Sumner v The Queen, the respondent appealed against a conviction and sentence for drug trafficking. The primary issue before the court was whether the trial judge erred in not directing the jury that the former solicitor of the appellant may have misunderstood his instructions in withdrawing an admission of guilt. The court held that the trial judge was not required to give such a direction, as it would have been speculative and potentially misleading. The charge to the jury was deemed balanced and fair, and the prosecutor was entitled to cross-examine the accused about his failure to call a witness. Furthermore, the court clarified that the onus of proof never shifted to the prosecution.

The appellant also challenged the sentence imposed, arguing that the sentencing judge failed to consider the impact of his ill health on the appropriateness of imprisonment. The court found that the sentencing judge did not adequately consider the appellant's health, which could have made imprisonment a greater burden for him. As a result, the appellant was re-sentenced. The court emphasised the importance of considering the individual circumstances of the offender, including their health, when determining an appropriate sentence. This decision underscores the need for sentencing judges to carefully assess the personal circumstances of the offender to ensure a just outcome.

Orders