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Court of Criminal Appeal 6 April 2009

Vigo v R

[2009] NSWCCA 98

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE FINDING OF ACTUAL AMOUNT OF DEALING EVIDENCE CONCLUSION OPEN NO PARTICULAR POINT OF PRINCIPLE

Citation: Vigo v R [2009] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 6 April 2009
Judges: Grove J, Howie J, Buddin J

Background

The applicant was convicted after a jury trial in the Sydney District Court of supplying not less than a large commercial quantity of methylamphetamine between January 1997 and September 2001. He was part of a large-scale drug distribution operation based in the Newcastle area, purchasing significant quantities from two co-offenders for on-supply to end users. The sentencing judge imposed a total term of 16 years imprisonment with a non-parole period of 12 years.

At sentencing, the District Court was required to determine the actual quantity of drug the applicant had supplied, going beyond the minimum threshold established by the jury verdict (one kilogram). Based primarily on the evidence of a co-offender, the sentencing judge found beyond reasonable doubt that the applicant had received in excess of 40 kilograms of methylamphetamine for on-supply.

The applicant sought leave to appeal against the severity of the sentence, challenging both the quantity finding and the overall sentence as manifestly excessive. An extension of time to bring the application was required, and the Crown did not oppose it.

  • Whether the sentencing judge erred in finding that the applicant had supplied in excess of 40 kilograms of methylamphetamine, based primarily on the evidence of a co-offender
  • Whether the sentence of 16 years imprisonment with a 12-year non-parole period was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's quantity finding. The sentencing judge had carefully assessed the evidence of the co-offender, acknowledged the need for caution given her potential unreliability, considered the cross-examination directed to him on sentence, and provided detailed reasons for accepting her evidence as both honest and accurate. The applicant's written submissions on appeal amounted to a re-argument of positions the sentencing judge had already rejected.

The Court noted that its power to intervene is limited to cases where error is demonstrated, applying the well-established principles in House v The King (1936) 55 CLR 449. No error of the relevant kind was shown: the sentencing judge had not taken into account irrelevant matters, ignored relevant ones, or applied a wrong principle. The conclusion reached on quantity was plainly open on the evidence.

On the second ground, the applicant had expressly confined this ground to succeeding only if the first ground was upheld. Because ground one failed, the manifest excess argument fell away. The Court also noted that the sentence fell within a discernible pattern for this category of offence, which carries a maximum penalty of life imprisonment.

Orders Made

  • Extension of time for making application for leave to appeal against sentence granted
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is required to determine the actual extent of an offender's conduct after conviction, going beyond the minimum quantity established by the jury's verdict, and may do so to the criminal standard of proof.
  • No particular point of principle arose in this decision; the Court of Criminal Appeal characterised the appeal as an attempt to re-litigate factual arguments already considered and rejected at first instance.
  • In dismissing the appeal, the Court confirmed that the applicable test for appellate intervention in sentencing is the House v The King standard: error must be demonstrated, such as reliance on an irrelevant matter, failure to consider a relevant matter, or application of a wrong principle.
  • Sufficient evidence existed to support a finding of supply exceeding 40 kilograms where the sentencing judge carefully assessed a co-offender's credibility, acknowledged the need for caution, and gave detailed reasons for accepting her account.
  • Where a ground of appeal against manifest excess is expressly contingent on another ground succeeding, the failure of the primary ground necessarily defeats the contingent one.

Legislation and Cases Referenced

Cases:
- House v The King (1936) 55 CLR 449 (standard for appellate intervention in sentencing)

Legislation:
- The judgment references statutory provisions prescribing the threshold for a "large commercial quantity" of methylamphetamine (at least one kilogram) and a maximum penalty of life imprisonment for the relevant offence, though specific legislation is not named in the decision text.