Young v The King - [2024] VSCA 179

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0085

RHYS YOUNG	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2024
DATE OF JUDGMENT:	12 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 179
JUDGMENT APPEALED FROM:	DPP v Young [2024] VCC 197 (Judge Moglia)

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CRIMINAL LAW – Sentence – Application for extension of time – Prohibited person in possession of a firearm, trafficking in a drug of dependence, methylamphetamine, and associated offences – Guilty plea – Total effective sentence of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 4 months – Whether judge erred by finding possession of firearm incidental to trafficking methamphetamine – Whether sentence manifestly excessive – Extension of time refused.

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Counsel
Applicant:		Mr T Acutt
Respondent:		Ms K Hamill
Solicitors
Applicant:	Slink & Keating
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

Introduction

On 30 October 2023, the applicant, then aged 35 years,[1] pleaded guilty before a judge in the County Court to the indictable offences of being a prohibited person possessing a firearm (charge 1);[2] trafficking in a drug of dependence, methylamphetamine (charge 2);[3] and three charges of possessing a drug of dependence, Xanax, testosterone and other growth hormones (charges 3, 4 and 5). He also pleaded guilty to the related summary charges of possessing cartridge ammunition without a licence (summary charge 2); possessing a Schedule 4 poison (summary charge 12); and dealing with the proceeds of crime (summary charge 13).
[1]His date of birth is 23 March 1988.
[2]Firearms Act 1996, s 5(1). The maximum sentence is 10 years’ imprisonment.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1). The maximum penalty is 15 years’ imprisonment.
Following a plea in mitigation, on 23 December 2023 the judge sentenced the applicant to three years and nine months’ imprisonment, with a non-parole period of two years and four months, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Prohibited person in possession of a firearm 2 years and 9 months Base

2 Trafficking in a drug of dependence 2 years 12 months

3 Possessing a drug of dependence 3 months —

4 Possessing a drug of dependence 3 months —

5 Possessing a drug of dependence 3 months —

Related summary offences

2

Possessing cartridge ammunition

Convicted and discharged

12

Possessing a Schedule 4 poison

Convicted and discharged

13 Dealing with proceeds of crime 5 months —

Total effective sentence 3 years and 9 months’ imprisonment

Non-parole period 2 years and 4 months

Pre-sentence detention 471 days

Section 6AAA declaration 5 years and 6 months

Other orders Forfeiture and disposal orders

The applicant now wishes to challenge his sentence. He needs an extension of time within which to do so.[4] If granted an extension of time, he seeks leave to appeal against his sentence on two grounds as follows:
1.The sentencing Judge erred by finding that 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 Young v The King

Details

AGLC: Young v The King [2024] VSCA 179
Case: [2024] VSCA 179
Decision Date: 12 August 2024

CaseChat Overview and Summary

The applicant, Young, was charged with multiple offences including possession of a firearm by a prohibited person, trafficking in a drug of dependence, and associated offences. He pleaded guilty to the charges and was sentenced to a total effective term of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 4 months. Young subsequently applied to the court for an extension of time to appeal against his sentence, arguing that the trial judge had erred in finding that the possession of the firearm was incidental to the trafficking of methylamphetamine, and that the sentence was manifestly excessive. The court was required to determine whether the trial judge’s findings and the sentence were correct and whether the application for an extension of time should be granted.

The court examined the trial judge’s reasons and found that the judge had correctly considered the nature and circumstances of the offences, the applicant’s criminal history, and the need for general deterrence. The court also noted that the trial judge had taken into account the fact that the applicant had pleaded guilty and had shown remorse. The court held that the trial judge’s findings and the sentence were not erroneous and that the application for an extension of time should be refused.

The court held that the trial judge had properly exercised his discretion in sentencing the applicant, and that the sentence was not manifestly excessive. The court also noted that the applicant had not provided any compelling reasons for the delay in lodging the appeal. The court held that the application for an extension of time should be refused as the applicant had failed to establish any grounds for an extension.

The court refused the application for an extension of time and upheld the sentence imposed by the trial judge. The court held that the trial judge had correctly considered the relevant factors in sentencing the applicant and that the sentence was not manifestly excessive. The court also held that the applicant had not provided any compelling reasons for the delay in lodging the appeal.

Orders