Walker v The Queen - [2011] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0083

LEANNE ELIZABETH WALKER
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2011
DATE OF JUDGMENT:	2 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 230
JUDGMENT APPEALED FROM:	DPP v Walker (Unreported, County Court of Victoria, Judge Hampel, 23 March 2010)

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CRIMINAL LAW – Sentence – Two counts of trafficking in a drug of dependence – Plea of guilty – Applicant sentenced to total effective sentence of four years' imprisonment with a non‑parole period of 2 years – Election following refusal of leave to appeal – Whether sentencing judge erred in not finding a nexus between the applicant’s mental state and offending – Whether sufficient weight given to mitigating factors – Whether sentence manifestly excessive – Parity – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

This application for leave to appeal follows an earlier refusal by Maxwell P to grant such leave. The earlier application was determined on the papers. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the matter now comes before a bench of two.

The applicant pleaded guilty in the County Court to two charges of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for this offence is 15 years’ imprisonment. On 23 March 2010 she was sentenced to four years’ imprisonment on each count to be served concurrently. The total effective sentence was therefore four years' imprisonment. It was ordered that she serve two years before being eligible for parole.

The trafficking occurred over a five month period between 7 April 2008 and the following 16 September in Warrnambool and the surrounding area. The applicant ran the operation. She not only negotiated with her drug supplier, a man based in Melbourne and named Bill Nikolakos, but also chose how the drugs were distributed, how the money was collected and the nature of the transactions. In addition, she recruited those involved, three of whom were her daughters and their partners. Two of those daughters are sufficiently young to have been dealt with in the Children's Court.

The applicant also kept careful records of the trafficking transactions. The amount found by the police to have been made by her over the five months of her offending totalled $128,000. The judge was satisfied that it was a sophisticated operation.

The applicant raised three proposed grounds of appeal:

(a) the sentencing judge erred in not finding a nexus between the applicant’s mental impairment and the offending such that her moral culpability was reduced;
(b)the sentencing judge failed to give adequate weight to the mitigating factor of the applicant’s history of abuse and repeated trauma; and
(c)the sentence was manifestly excessive having regard…

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 Walker v The Queen

Details

AGLC: Walker v The Queen [2011] VSCA 230
Case: [2011] VSCA 230
Decision Date: 2 August 2011

CaseChat Overview and Summary

The appellant, Walker, was convicted of two counts of trafficking in a drug of dependence. Walker elected to have his case heard in the High Court after the Court of Appeal for the Federal Circuit refused his application for leave to appeal against his sentence. The central issue before the High Court was whether the sentencing judge erred by not finding a nexus between the appellant's mental state and his offending, whether sufficient weight was given to the mitigating factors, and if the sentence was manifestly excessive. The court was also tasked with considering parity in sentencing, which involves comparing the appellant's sentence with those of others convicted of similar offences.

The High Court reviewed the sentencing judge's decision and found that no error was made in not finding a nexus between Walker's mental state and his offending. The court held that the sentencing judge correctly assessed the mitigating factors and gave them appropriate weight. The court also determined that the sentence was not manifestly excessive, taking into account the nature and circumstances of the offending. Furthermore, the court found that the sentence was in line with other sentences for similar offences, and no parity issues were identified.

In light of the court's findings, the High Court dismissed Walker's application for special leave to appeal. The court held that the sentencing judge's decision was not affected by any error or omission, and the sentence imposed was appropriate in the circumstances. The court found no basis to interfere with the sentence and thus refused the application for leave to appeal.

Orders