Symons (a pseudonym) v The King - [2023] VSCA 316

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0146
BAILEY SYMONS (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of certain names.

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	Kennedy JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 316
JUDGMENT APPEALED FROM:	[2023] VCC 1284 (Judge Higham)

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CRIMINAL LAW – Application for leave to appeal – Sentence – One charge of trafficking in drug of dependence together with other charges including firearms offences and charge of deal with property suspected of being proceeds of crime – Total effective sentence 80 days’ imprisonment combined with 33-month drug and alcohol treatment order – Whether sentence on charge of deal with property suspected of being proceeds of crime manifestly excessive – Whether proper regard to principles of proportionality and parsimony – Leave to appeal refused.

Sentencing Act 1991, pt 3 div 2 sub-div 1C; Criminal Procedure Act 2009, s 280(1).

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Counsel
Applicant:		Mr T Battersby
Respondent:		Ms K Hamill
Solicitors
Applicant:	Slink & Keating
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA:

Introduction and summary

On 14 July 2023, the applicant, Bailey Symons, pleaded guilty to four charges on the relevant indictment and two related summary charges.
Following a Drug and Alcohol Treatment Court determination hearing (‘plea hearing’) on 14 July 2023, the applicant was sentenced on 24 July 2023 in the Drug Court Division of the County Court as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence	15 years	25 months’ imprisonment (within DATO)	Drug and Alcohol Treatment Order (‘DATO’) base[2]
2	Possession of a drug of dependence	1 year	60 days’ imprisonment	Imprisonment base
3	Dishonestly receive stolen goods	15 years	6 months’ imprisonment (within DATO)	2 months cumulative on DATO
4	Prohibited person possess imitation firearm	10 years	5 months’ imprisonment (within DATO)	2 months cumulative on DATO
Related Summary Offences
9	Deal with property suspected of being the proceeds of crime	2 years	10 months’ imprisonment (within DATO)	4 months cumulative on DATO
19	Possess a prohibited weapon without exemption	2 years	50 days’ imprisonment	20 days cumulative
Total Effective Sentence:		80 days’ imprisonment combined with a 33-month DATO
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		80 days declared as applied to the sentence of imprisonment. An additional 463 days noted as applicable to the DATO
Section 6AAA Statement:		Total Effective Sentence 4 years Non Parole-Period 33 months
Other Relevant Orders: 1. Forfeiture order. 2. Destruction order.

[2]As explained below, pursuant to s 18ZE of the Sentencing Act 1991 an offender is not to serve the custodial part of a DATO except if it is activated. The DATO contained a treatment and supervision…

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.

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Details

Case: [2023] VSCA 316
Decision Date: 14 December 2023

CaseChat Overview and Summary

The application for leave to appeal against sentence was brought by the respondent, Symons, who was convicted of trafficking in a drug of dependence, along with other offences including firearms offences and dealing with property suspected of being proceeds of crime. The sentence imposed by a single judge was an effective 80 days’ imprisonment combined with a 33-month drug and alcohol treatment order. The application was heard in the Victorian Court of Appeal, presided over by Justice Kennedy. The primary legal issue was whether the sentence imposed for the charge of dealing with property suspected of being proceeds of crime was manifestly excessive and whether the principles of proportionality and parsimony were properly considered.

The court assessed the sentence by examining the totality of the sentence and the principles underpinning sentencing. It was noted that the sentence imposed was well within the maximum penalties prescribed by statute for each offence. The court also emphasised that the principles of proportionality and parsimony were adequately addressed by the sentencing judge. It found that the sentence was a balanced reflection of the seriousness of the offences and the circumstances of the offender. The court was satisfied that the sentence was neither manifestly excessive nor did it fail to give proper regard to the statutory principles.

The Court of Appeal, having considered the arguments presented, found that the sentence did not warrant an appeal on the grounds of being manifestly excessive or failing to adhere to the principles of proportionality and parsimony. Consequently, the application for leave to appeal was refused. This decision underscores the deference given to the sentencing judge's assessment of the appropriate sentence in the circumstances of the case.

Orders