CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one charge of possession of substances and equipment for purposes of trafficking in a drug of dependence, and one charge of possession of a drug of dependence (methylamphetamine) – Sentenced to 3 years’ imprisonment with 2 years non-parole period – Whether judge erred in failing to take into account appellant’s early plea – Whether judge erred in not having regard to ‘dead time’ appellant served in custody – Appeal allowed – Resentenced to 2 years and 8 months’ imprisonment with non-parole period of 1 year and 3 months – R v Renzella [1997] 2 VR 88 applied.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms G F Connelly
Greg Thomas, Barristers and Solicitors
For the Respondent
Ms D I Piekusis QC
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA
KAYE JA:
The appellant pleaded guilty in the County Court to one charge of possession of substances and equipment for the purpose of trafficking in a drug of dependence, and one charge of possession of a drug of dependence, namely, methylamphetamine. On the same day, the appellant’s co-offender, Raymond Hamment (‘Hamment’), pleaded guilty to one charge, on the same indictment, of possession of precursor chemicals.
Charge
Offence
Maximum
Sentence
Cumulation
1
Possession of substance and/or equipment for trafficking a drug of dependence
10 years
3 years
Base
2
Possession of drug of dependence
400 penalty units or 5 years or both
1 month
Total Effective Sentence:
3 years
Non-Parole Period:
2 years
Pre-Sentence Detention:
164 days
After a plea presented on his behalf, the appellant was sentenced to a total effective sentence of 3 years’ imprisonment with a non-parole period of two years. That sentence was constituted as follows:
The appellant, by leave, appealed the sentence on the following grounds:
Ground 1: The sentencing judge erred in:
(a)not taking into account as a matter in mitigation that the applicant had offered on 19 March 2018 to plead guilty to the charges on the plea indictment; and/or
(b)not according the utilitarian value of the plea the notional value it would have had, had the prosecution accepted it on 19 March 2018 rather than 8 July 2019; and/or
(c)not treating the plea as having been entered at the first reasonable opportunity.
Ground 2:The sentencing judge erred in not having regard to dead time the applicant had served in custody.
At the conclusion of oral submissions, we determined that the appeal should be allowed on both grounds, and that the appellant should be resentenced to a total effective term of two years and eight months’ imprisonment with a non-parole period of…
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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AGLC
Peter Thurlow v The Queen [2021] VSCA 71
Case
[2021] VSCA 71
Decision Date
CaseChat Overview and Summary
The appellant, Thurlow, appealed against his sentence for drug-related offences. Thurlow had pleaded guilty to one charge of possession of substances and equipment for the purposes of trafficking in a drug of dependence, and one charge of possession of a drug of dependence, specifically methylamphetamine. He was sentenced to three years’ imprisonment with a non-parole period of two years by the County Court. Thurlow contended that the sentencing judge erred by failing to take into account his early plea and the period of ‘dead time’ he had already served in custody before sentencing.
The legal issues before the court were whether the sentencing judge had erred by not considering the appellant's early guilty plea and the time he had already spent in custody prior to sentencing. The court needed to determine if these factors warranted a reduction in the sentence imposed. The appellant argued that his early guilty plea should have resulted in a discount on his sentence, and the time he had spent on remand should have been credited towards his overall sentence. The Crown, however, argued that the original sentence was appropriate and that the judge had adequately considered all relevant factors.
The court held that the judge had indeed erred by not sufficiently taking into account the appellant's early guilty plea and the time he had already served in custody. The court found that these factors warranted a reduction in the original sentence. Applying the principles from R v Renzella, the court reassessed the sentence, considering the mitigating factors presented. The appeal was allowed, and the appellant was resentenced to two years and eight months’ imprisonment with a non-parole period of one year and three months. This decision recognised the importance of early guilty pleas and the need to credit time served before sentencing in appropriate circumstances.