DPP (Cth) v Masange and Kachunga

[2017] VSCA 204

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Sentence
4. › Crown appeal
5. › Manifest inadequacy
6. › Drug importation offences
7. › Import commercial quantity of border controlled drug
8. › Rolled-up charge
9. › Whether sentence outside range reasonably open
10. › Criminal Code Act 1995 (Cth), s 307.1
1. Criminal Law
2. › Appeal
3. › Sentence
4. › Crown appeal
5. › Manifest inadequacy
6. › Drug possession offences
7. › Possess commercial quantity of border controlled drug
8. › Whether sentence outside range reasonably open
9. › Criminal Code Act 1995 (Cth), ss 307.6, 307.8
1. Criminal Law
2. › Appeal
3. › Sentence
4. › Crown appeal
5. › Residual discretion
6. › Prosecutor's duty to assist sentencing court to avoid appealable error
7. › Whether prosecutor's silence constitutes implied concession
8. › Distinction between express concession and mere silence
9. › Whether silence productive of error
1. Criminal Law
2. › Appeal
3. › Sentence
4. › Crown appeal
5. › Residual discretion
6. › Changed circumstances of offender pending appeal
7. › Release on parole
8. › Whether residual discretion should be exercised

Quick Take

A prosecutor's silence in failing to contest a defence submission on sentencing categorisation does not, without more, amount to an implied concession engaging the residual discretion on a Crown sentence appeal. Whether silence is productive of error depends on the subject-matter and context of the submission to which the prosecutor should have responded. The De La Rosa sentencing categories for drug importation offences are descriptive only and should not be treated as sentencing guidelines. GBL importation sentences should not be used as comparators for other drug importation offences.