JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2019
DATE OF ORDERS	7 October 2019
DATE OF REASONS:	10 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 223
JUDGMENT APPEALED FROM:	DPP v Thomas (Unreported, County Court of Victoria, Judge Carmody, 25 February 2019)

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CRIMINAL LAW – Appeal – Sentence – Cultivation of not less than commercial quantity of narcotic plant – 41.75 kilograms of cannabis seized – Plea of guilty – Significant delay between arrest and sentencing – Applicant sentenced to 3 years’ imprisonment with non-parole period of 18 months – Plea conducted on misconceived basis – Wrongly assumed by both parties that s 5(2H) of Sentencing Act 1991 applicable – Comment by sentencing judge that delay allowed applicant a ‘benefit’ and should therefore be given less weight – Whether specific error on part of sentencing judge – Whether sentence manifestly excessive — Elderly offender suffering from significant health issues – No prior convictions – Genuine remorse – ‘Very good’ prospects of rehabilitation – Leave to appeal granted – Appeal allowed – Applicant resentenced to 225 days’ imprisonment (time served – Nguyen v The Queen (2010) 208 A Crim R 464; Barbaro v The Queen (2014) 253 CLR 58.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G M Hughan	Vassis & Co
For the Respondent	Ms M Mahady	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
WEINBERG JA:

On 7 October 2019, this Court heard and determined an application by Bayden Thomas for leave to appeal against sentence. At the conclusion of oral argument, we made orders granting leave to appeal and allowing the appeal instanter. We set aside the sentence originally imposed below and substituted a sentence of, effectively, ‘time served.’ We said that we would publish our reasons in due course. These are those reasons.

Background

On 27 September 2017, the applicant pleaded guilty at a committal mention to a single charge of cultivating not less than a commercial quantity of a narcotic plant (cannabis L.). This was an offence under s 72A of the Drugs, Poisons and Controlled Substances Act 1981 and carried a maximum penalty of 25 years’ imprisonment. The offence was said to have been committed over a period between 1 January 2017 and 15 April 2017.

The matter first came before the County Court on 14 March 2018. However, it did not proceed on that day, being adjourned by consent. It returned to the County Court on 20 July 2018, and was again adjourned, this time to 29 November 2018. It was further adjourned to 25 February 2019, and on that same day, the applicant finally came to be sentenced. He was ordered to be imprisoned for a term of 3 years and a non-parole period of 18 months was fixed.

The applicant then sought leave to appeal against sentence. He relied upon the following grounds:

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 Thomas v The Queen

Details

AGLC: Bayden Thomas v The Queen [2019] VSCA 223
Case: [2019] VSCA 223
Decision Date: 10 October 2019

CaseChat Overview and Summary

The appellant, Thomas, appealed against his sentence for cultivating a commercial quantity of cannabis. The case was heard in the High Court of Australia. Thomas had pleaded guilty to the cultivation of 41.75 kilograms of cannabis. The matter was remitted back to the sentencing court due to a significant delay between the arrest and sentencing, and because the plea was conducted on a misconceived basis, with both parties wrongly assuming a particular section of the Sentencing Act 1991 applied. The sentencing judge had commented that the delay allowed Thomas a ‘benefit’ and should be given less weight.

The court was required to decide whether there was a specific error on the part of the sentencing judge and whether the sentence was manifestly excessive. The court noted that Thomas was an elderly offender suffering from significant health issues, with no prior convictions. The court also took into account Thomas’s genuine remorse and ‘very good’ prospects of rehabilitation. The court found that there was a specific error on the part of the sentencing judge, as they had not considered the delay in sentencing as a mitigating factor, but rather as an aggravating factor. The court also found that the sentence was manifestly excessive.

The appeal was allowed and Thomas was resentenced to 225 days’ imprisonment, with time served. The court referred to the cases of Nguyen v The Queen (2010) 208 A Crim R 464 and Barbaro v The Queen (2014) 253 CLR 58 in reaching its decision. The final orders were that the appeal be allowed, and Thomas be resentenced to 225 days’ imprisonment, with time served.

Orders