Vigo v R - [2009] NSWCCA 98

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Vigo v R [2009] NSWCCA 98

FILE NUMBER(S):
2003/15608

HEARING DATE(S):
6 April 2009

EX TEMPORE DATE:
6 April 2009

PARTIES:
Daniel Eduardo VIGO - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
Grove J Howie J Buddin J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0531

LOWER COURT JUDICIAL OFFICER:
Berman DCJ

LOWER COURT DATE OF DECISION:
2 December 2005

COUNSEL:
T Watts - Applicant
D Arnott SC - Respondent/Crown

SOLICITORS:
Burston Cole & Mulock - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Fact finding by sentencing judge following conviction of offender
Supply of large commercial quantity of prohibited drug
Finding of actual amount of dealing
Evidence
Conclusion open
No particular point of principle

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
House v The King (1936) 55 CLR 449

TEXTS CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2003/15608
GROVE J
HOWIE J
BUDDIN J
6 April 2009

Daniel Eduardo VIGO v R

Judgment

GROVE J: Following trial between 15 and 18 August 2005 before Berman DCJ and a jury at Sydney District Court the applicant, Daniel Eduardo Vigo, was convicted upon indictment charging that between 1 January 1997 and 24 September 2001 he supplied not less than a large commercial quantity of the prohibited drug methylamphetamine. His Honour sentenced the applicant to imprisonment for a total term of 16 years specifying a non-parole period of 12 years commencing on 17 August 2005. The applicant seeks leave to appeal against severity of that sentence on two grounds, first, that his Honour erred in finding that the applicant had supplied in excess of 40 kilogrammes of amphetamine and, second, that the sentence is manifestly excessive.
The applicant requires an extension of time for bringing this application. The grant of an extension is not opposed by the Crown. It is supported by affidavits of the applicant sworn 21 November 2008 and by Gregory Willis, solicitor, sworn 27 March 2009. There is no need to recapitulate the circumstances described therein which detail various reasons for non-compliance with time limits, and, without comment upon the cogency or otherwise of the explanation, I would, having regard to the stance of the Crown grant the necessary extension.
The applicant was one of the offenders arrested and charged following the detection by police of a large scale drug distribution operation conducted in the Newcastle area. Other offenders, including one Richard Walsh and his de facto wife Melinda Love, acquired pure methylamphetamine from various sources. Love would then cut it, repackage it and sell it to others. Those purchasers would usually on-sell the drugs to end users. The applicant was one of those who bought significant quantities of drugs from Walsh and Love for the purpose of sale to drug users. His Honour’s findings to the above effects which are, of course, consistent with the jury verdict are not challenged.
In the terms of the indictment, the guilt…

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 Vigo v R

Details

AGLC: Vigo v The Queen [2009] NSWCCA 98
Case: [2009] NSWCCA 98
Decision Date: 6 April 2009

CaseChat Overview and Summary

In the case of Vigo v R, the appellant, Mr. Vigo, was convicted of drug trafficking involving a large commercial quantity of a prohibited drug. The matter was brought before the High Court of Australia, where the primary issue was the extent to which the sentencing judge could determine the actual amount of the drug supplied. This was pivotal as the sentence could vary significantly depending on the quantity of drugs involved. The court was tasked with determining whether the sentencing judge was entitled to make such a finding and whether the evidence presented was sufficient to support such a conclusion.

The legal issues before the court encompassed whether the sentencing judge was justified in finding the actual quantity of the drug supplied, even in the absence of specific evidence. The court examined the extent to which a sentencing judge could engage in fact-finding when the evidence did not definitively establish the amount of the drug. The court also considered whether the conclusion drawn by the sentencing judge was open to them based on the evidence and whether it adhered to the principles of criminal sentencing. The central question was whether the conclusion reached was legally sound and supported by the evidence.

The court held that the sentencing judge was entitled to make findings regarding the actual quantity of the drug supplied, provided that the conclusion was open to them based on the evidence. The court emphasised that while the evidence may not have definitively established the amount, it was sufficient to allow the sentencing judge to reasonably conclude the quantity. The reasoning underscored that the sentencing judge's findings were permissible as long as they were based on a rational assessment of the evidence available. The court concluded that the sentencing judge's determination was supported by the evidence and did not contravene any legal principles.

The High Court of Australia affirmed the sentencing judge's findings regarding the quantity of the drug supplied. The court did not find any legal errors in the sentencing process and upheld the sentence imposed. The final orders confirmed the conviction and the sentence, with no appeal allowed on the grounds of the sentencing judge's fact-finding.

Orders