Taumoefolau v The Queen - [2015] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0035

ENEASI TAUMOEFOLAU

THE QUEEN

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JUDGES:	HANSEN, WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2015
DATE OF JUDGMENT:	25 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 221
JUDGMENT APPEALED FROM:	[2014] VCC 1328 (Judge Gucciardo)

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CRIME – Sentence – Trafficking offences – Drugs not distributed – Whether relevant in mitigation – DPP v Holder [2014] VSCA 61 explained – Harm (actual or potential) of particular conduct potentially a relevant matter – Application for leave to appeal granted – Not satisfied different sentence should be imposed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr B F Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

HANSEN JA
WHELAN JA
BEACH JA:

Introduction

On 14 April 2014, the applicant pleaded guilty in the County Court to three charges of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981. On 30 July 2014, the applicant pleaded guilty to the summary offence of possessing a prohibited weapon contrary to s 5AA of the Control of Weapons Act 1990. Following a plea hearing, on 18 August 2014, the applicant was sentenced as follows:

Charges on Indictment Offence Maximum Sentence Cumulation

1 Trafficking in a drug of dependence – Ecstasy [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
15 Years

[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
3 ½ years’ imprisonment Base

2
Trafficking in a drug of dependence –

Methylamphetamine

[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]

15 years

[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
3 ½ years’ imprisonment 12 months

3
Trafficking in a drug of dependence – Cannabis

[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]

15 years

[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
2 years’ imprisonment 6 months

Summary Charge
Possess Prohibited Weapon

[s 5AA of the Control of Weapons Act 1990]

2 years

[s 5AA of the Control of Weapons Act 1990]

2 months’

imprisonment
Nil

Charges on Indictment	Offence	Maximum	Sentence	Cumulation
1	Trafficking in a drug of dependence – Ecstasy [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]	15 Years [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]	3 ½ years’ imprisonment	Base
2	Trafficking in a drug of dependence – Methylamphetamine [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]	15 years [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]	3 ½ years’ imprisonment	12 months
3	Trafficking in a drug of dependence – Cannabis [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]	15 years [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]	2 years’ imprisonment	6 months
Summary Charge	Possess Prohibited Weapon [s 5AA of the Control of Weapons Act 1990]	2 years [s 5AA of the Control of Weapons Act 1990]	2 months’ imprisonment	Nil

Total Effective Sentence:	5 years
Non-Parole Period:	3 ½ years
*Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*	6 days
6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 ½ years.
Other relevant orders: Forfeiture and Disposal Orders Forensic Procedure Sample Order

On 20 February 2015, the applicant filed an application for leave to appeal against his sentence. In that application, the applicant set out his proposed ground of appeal as follows:

1.The judge erred by sentencing the applicant on charge 2 on the basis that:
(a)trafficking is no less serious in respect of unsupplied drugs than in respect of those which are actually supplied to ultimate consumers and other traffickers;
(b)the…

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 Taumoefolau v The Queen

Details

AGLC: Taumoefolau v The Queen [2015] VSCA 221
Case: [2015] VSCA 221
Decision Date: 25 August 2015

CaseChat Overview and Summary

The defendant, Taumoefolau, appealed against his sentence for drug trafficking offences, arguing that the trial judge did not adequately consider the fact that the drugs had not been distributed. The matter was heard in the Court of Appeal. The primary legal issue was whether the trial judge's failure to consider the non-distribution of the drugs constituted a significant error in sentencing, warranting a new sentence to be imposed. The court examined the principles established in DPP v Holder, which suggest that the harm (actual or potential) of particular conduct can be a relevant matter in sentencing. The court found that the trial judge did not err in failing to consider the non-distribution of the drugs, as it was not a significant mitigating factor in this instance. The appeal was dismissed, but leave to appeal to a higher court was granted. The court determined that, while the trial judge's approach was flawed, it did not necessitate a different sentence in this case.

Orders