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DPP v Goldsmid

DPP v Goldsmid

Case [2023] VSCA 124 24 May 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0123

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JACOB GOLDSMID	Respondent
S EAPCR 2022 0124
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
YOHANN MOREAU	Respondent
S EAPCR 2022 0146
JACOB GOLDSMID	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2023
DATE OF JUDGMENT:	24 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 124
JUDGMENT APPEALED FROM:	[2022] VCC 1286 (Judge Wilmoth)

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CRIMINAL LAW – Sentence – Crown Appeals – Trafficking in a large commercial quantity of drug of dependence (charge 1) – Co-accused – Sentenced to 7 years and 6 years respectively on charge 1 – Total effective sentence 9 years and 8 years respectively – Sentences on charge 1 manifestly inadequate – Residual discretion exercised – Appeals dismissed.

CRIMINAL LAW – Conviction – Purported related summary charge – Indictable offence triable summarily – Charge transferred to County Court by Magistrates’ Court – No committal hearing – No direct indictment – Charge not properly before County Court – Crown concession conviction a nullity – Leave to appeal granted – Appeal allowed – Conviction quashed.

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In proceedings S EAPCR 2022 0123 and S EAPCR 2022 0124

Counsel
Appellant:		Ms EH Ruddle KC with Mr L McAuliffe
Respondent (Goldsmid)		Mr R Nathwani with Ms F Fox
Respondent (Moreau)		Mr PJM Baume
Solicitors
Appellant	Ms A Hogan, Solicitor for Public Prosecutions
Respondent (Goldsmid)	Armstrong Legal
Respondent (Moreau)	Condello Lawyers

In proceeding S EAPCR 2022 0146

Counsel
Applicant		Mr R Nathwani with Ms F Fox
Respondent		Ms EH Ruddle KC with Mr L McAuliffe
Solicitors
Applicant	Armstrong Legal
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KYROU JA
T FORREST JA:

Introduction and summary

There are three proceedings before this Court. In proceedings S EAPCR 2022 0123 and S EAPCR 2022 0124, the Director of Public Prosecutions appeals against sentences imposed on Jacob Goldsmid and Yohann Moreau by a judge of the County Court. In proceeding S EACPR 2022 0146, Goldsmid applies for leave to appeal against one of the convictions entered in the County Court. As discussed at [100] below, the application for leave to appeal against conviction was not contested. Accordingly, for convenience, we will first deal with the Director’s appeal, and will refer to Goldsmid and Moreau collectively as the ‘respondents’ throughout these reasons.
On 24 May 2022, Goldsmid pleaded guilty to the charges set out in the table below and, on 9 August 2022, he was sentenced by a judge of the County Court as follows:[1]
[1]DPP v Goldsmid [2022] VCC 1286 (‘Sentencing remarks’).

Charge on Indictment

Offence

Maximum Penalty

Sentence

Cumulation

1

Trafficking in a drug of dependence – Large commercial quantity (Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’), s 71)

Life

7 years

Base

2

Trafficking in a drug of dependence (DPCSA, s 71AC(1))

15 years

2 years

1 year

3

Trafficking in a drug of dependence

15 years

2 years

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 DPP v Goldsmid

Details

AGLC: Director of Public Prosecutions v Goldsmid [2023] VSCA 124
Case: [2023] VSCA 124
Decision Date: 24 May 2023

CaseChat Overview and Summary

The case of DPP v Goldsmid involved the Director of Public Prosecutions (DPP) appealing the sentences given to the defendant, Goldsmid, and the defendant appealing his conviction on a related charge. Goldsmid was convicted and sentenced for trafficking a large commercial quantity of a drug of dependence. His co-accused received a similar conviction and sentence. The legal issues in the case centred around whether the sentences imposed on Goldsmid were manifestly inadequate and whether the conviction on the related charge was validly before the County Court. The Court of Appeal needed to determine whether the Crown's appeal against the sentence was valid and if the conviction on the related charge was properly before the County Court.

The Court of Appeal held that the sentences imposed on Goldsmid were manifestly inadequate, given the gravity of the offence. The court exercised its residual discretion to increase the sentences on the primary charge. The Court of Appeal also found that the conviction on the related charge was a nullity as it was not properly before the County Court. There had been no committal hearing or direct indictment, and the charge was transferred to the County Court by the Magistrates’ Court. The Crown conceded that the conviction on the related charge was a nullity, and the Court of Appeal allowed the appeal and quashed the conviction.

The Court of Appeal dismissed the Crown's appeal against the sentence, finding that the sentences were inadequate and increasing them accordingly. The total effective sentences for Goldsmid on the primary charge were increased to nine years. The Court of Appeal allowed Goldsmid's appeal against his conviction on the related charge, quashed the conviction, and granted leave to appeal. The final orders of the court were that the sentences on the primary charge were increased, and the conviction on the related charge was quashed.

Orders