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Lipp v The Queen

Lipp v The Queen

Case [2013] VSCA 384 18 December 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0121
GEORGE ERNEST LIPP	Applicant
v
THE QUEEN	Respondent

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JUDGES	REDLICH JA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 November 2013
DATE OF JUDGMENT	18 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 384
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Lipp (Unreported, County Court of Victoria, 22 February 2013, Judge Lacava)

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CRIMINAL LAW – Sentence – Prohibited person in possession of an unregistered firearm – Whether sentence for possession in furtherance of criminal activity excessive – Possession of substance, material or equipment for trafficking in a drug of dependence contrary to s 71A of the Drugs, Poisons and Controlled Substances Act 1981 – Possession of a precursor chemical contrary to s 71D – Whether conviction on s 71D offence constituted double punishment for possession on s 71A offence – Pearce v The Queen (1998) 194 CLR 610; Lecornu v The Queen (2012) 222 A Crim R 73 applied – Leave granted – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Mr P Doyle	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

LASRY AJA:

The applicant pleaded guilty on 29 January 2013 to one charge of possessing, whilst being a prohibited person, an unregistered firearm (charge 1).[1] Following a trial the applicant was convicted on 22 February 2013 on a further four charges of being a prohibited person in possession of an unregistered firearm (charges 2–5);[2] one charge of possessing explosives (charge 6);[3] one charge of possessing substances, materials or equipment for trafficking in a drug of dependence (charge 7);[4] and two charges of possessing a precursor chemical (charges 8 and 9).[5] He was sentenced to a total effective sentence of eight years and six months’ imprisonment and a non-parole period of five years and eight months was fixed.
[1]Section 5(1A) of the Firearms Act 1996.
[2]Ibid.
[3]Section 317(4) of the Crimes Act 1958.
[4]Section 71A of the Drugs, Poisons and Controlled Substances Act 1981.
[5]Section 71D of the Drugs, Poisons and Controlled Substances Act 1981.

On 4 July 2013 the applicant sought an extension of time to file and serve a notice of application for leave to appeal against his sentence. That application having been refused by the Registrar, he seeks to have that application determined by the Court of Appeal. As can be seen, the delay was a substantial one. Although the applicant almost immediately after sentence instructed his solicitors to commence an appeal, as Redlich JA said in Bowling v The Queen ‘the time limits set out in the rules of Court are not to be treated as some empty formality’.[6] The new regime does not permit delay because the applicant's legal practitioners cannot give the matter the immediate attention required. Although the material did not demonstrate ‘special and substantial reasons to extend the time’,[7] for the reasons that follow, we consider that one of…

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 Lipp v The Queen

Details

AGLC: Lipp v The Queen [2013] VSCA 384
Case: [2013] VSCA 384
Decision Date: 18 December 2013

CaseChat Overview and Summary

The appellant was found in possession of an unregistered firearm and various other items by police, leading to a conviction for possession in furtherance of criminal activity and various drug-related offences. The appeal against sentence was dismissed, but leave to appeal the conviction was granted. The appeal against conviction centred on whether the appellant’s conviction for possession of a precursor chemical under s 71D of the Drugs, Poisons and Controlled Substances Act 1981 constituted double punishment for the possession of a substance, material or equipment for trafficking in a drug of dependence under s 71A. The appellant argued that both offences were for possession of the same substance and thus constituted double punishment, as held in Pearce v The Queen and Lecornu v The Queen. The Court found that the reasoning in those cases did not apply to the current legislation. The Court found that the two offences were not identical in nature, and the s 71D offence was not simply an extension of the s 71A offence. The appeal against conviction was dismissed, and leave to appeal the sentence was refused.

Orders