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Judgment summary - Gregory (a pseudonym) v The Queen [2017] VSCA 151

The Court of Appeal (President Maxwell, Justice Redlich and Justice Beach) today said higher sentences were required in cases of trafficking a drug of dependence in a commercial quantity (‘CQ’) and noted this may result in increased sentences for trafficking in a large commercial quantity (‘LCQ’).

The primary argument on appeal was that a sentence of eight years and six months’ imprisonment for CQ trafficking was manifestly excessive in light of current sentencing practice (‘CSP’). It was contended that the sentence was at or near the highest imposed for that offence on a plea of guilty.

The Court dismissed the appeal against sentence concluding that having regard to CSP, the sentence must be regarded as stern but was not outside the range reasonably open.

A secondary contention on appeal was that the sentencing judge had impermissibly taken into account criminality associated with other trafficking and violence offences when sentencing for CQ trafficking. The Court concluded there was nothing about that sentence, nor the other individual sentences that suggested double punishment and that the judge had been correct to treat the operational violence as an aggravating factor. 

Before the hearing of the appeal, the Director of Public Prosecutions filed a submission contending that sentencing practices for CQ trafficking had been

unduly compressed at the ‘top’ end of the range and require recalibration to reflect the inherent gravity of the offending conduct, the impact of the offence upon addicts and the wider community in general, and the high maximum penalty prescribed for the offence.

The Court noted that:

Submissions of this kind by the Director, as to the inadequacy of current sentencing for serious offences, are advanced in discharge of his responsibility to ensure that appropriate sentencing standards are maintained, and that the sentences which are imposed are proportionate to the objective gravity of the offence and reflect the correct application of sentencing principles. 

The Court upheld the Director’s submission concluding that it was quite remarkable that an offence with a maximum penalty of 25 years’ imprisonment has only once over the past decade attracted a sentence of nine years’ imprisonment. And that:

This reflects, as the Director submits, a ‘persistent error’ in the manner in which serious instances of this offence have been treated. It demonstrates, moreover, that the objective seriousness of this offending has been wrongly categorised.

The Court’s view was that

sentences well into double figures would have been expected for commercial quantity trafficking offences where one or more of the following features was present:

    • the quantity involved approached the large commercial quantity threshold
    • the offender was in charge of the trafficking business
    • the business was conducted for a substantial period
    • the offender pleaded not guilty and/or
    • the offender had relevant prior convictions.

The Court directed that sentencing courts should no longer regard themselves as constrained by existing sentencing practices for offences in that category and indicated by way of general guidance, that had it not been constrained by the requirement of consistency, it would have considered a sentence of 13 – 15 years to have been well within range for this type of offending.

Read the Court's full judgment on Austlii (External link)

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Author: Supreme Court of Victoria
Publisher: Supreme Court of Victoria
Date of Publication: June 2017
Copyright: Supreme Court of Victoria, 2017


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