Lipp v The Queen
[2013] VSCA 384
•18 December 2013
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 the proposed grounds warrants a grant of leave. As such, the extension of time within which to seek leave to appeal should be granted.
[6]Bowling v The Queen [2013] VSCA 87, [16].
[7]Ibid [16]–[21].
Circumstances of offending
In March 2009, investigating police from the Clandestine Laboratory Squad commenced a drug investigation codenamed ‘Hosted’. The applicant was the target of that investigation. He was at that time a wanted person. He had been arrested in August 2005 and charged with drug offences, including trafficking in a drug of dependence in a commercial quantity. He was committed to stand trial on that charge but absconded. A warrant had been issued for his arrest and he remained at large until arrested on the matters the subject of the present appeal.
By June 2009 he was under police surveillance and was observed entering and leaving 20 Bardwell Drive, Mickleham, a property in a semi-rural location on a small acreage. On 14 August 2009 the applicant was observed leaving the house and was followed to Box Hill, where he was intercepted and arrested. A search of the vehicle located a loaded Ruger handgun (charge 1), a loaded Ruger magazine and $1,855 in cash. Both were located behind the passenger seat. That afternoon police executed a search warrant at the Mickleham property. During the course of the search, police located further firearms and chemicals, and equipment typical of that used in a clandestine amphetamine laboratory.
A 9 mm Owen submachine gun was located on a mattress in the lounge room. The gun was loaded when found. The police also located ammunition for this firearm in the house (charge 2). The firearm was able to be discharged both manually and in automatic function. A single-barrelled 12 gauge Sterling shotgun was located on the bottom shelf of a cupboard in the hallway of the house. This firearm was also loaded when found (charge 3). That gun was able to be discharged. An 8 mm calibre Mondial self-loading alarm pistol was found in a sports bag on the floor of the hallway cupboard in the house. This pistol was designed to discharge cartridges and/or tear gas cartridges as a deterrent to others. The pistol was not capable of discharging a bullet or shot, although it was altered to look as if it could (charge 4). Wrapped in a blanket on the third shelf in the hallway cupboard, the police found a 7.62 x 39 mm Soviet 6 Corp rifle together with a loaded magazine which was found to be in working order (charge 5). A deal of ammunition was also found at the house ready for use. None of the weapons were registered and it was not in dispute that the applicant was a person prohibited from possessing a firearm.
Police found explosives inside a large shed, comprising two sticks of power gel rigged with a safety fuse and detonators. Inside the house in the hallway cupboard, police found two and a half sticks of power gel and numerous bundles of electric detonators (charge 6).
The police also located chemicals and laboratory equipment throughout the house and in a shed located at the rear (charge 7). Inside the house, police located 183.8 gms of mercury chloride, the prescribed quantity of this chemical being 0.1 gm (charge 8). They also found 12.3 kgs of phosphorus, the prescribed quantity of this chemical being 10 gms (charge 9). Both chemicals are prescribed precursor chemicals.
In his sentencing remarks the trial judge described these offences as being ‘at the very serious end for offending of this kind.’[8] On charge 1 of possessing an unregistered firearm whilst prohibited, the applicant was sentenced to 42 months’ imprisonment. On charge 2 for the same offence he was sentenced to 36 months’ imprisonment with one year cumulated on charge 1. On the three remaining charges of possessing an unregistered firearm the applicant was sentenced to 30 months (charge 3), 18 months (charge 4) and 30 months (charge 5) respectively, but no further orders for cumulation were made. On charge 6 of possessing explosives, a sentence of three years was imposed with a further order of cumulation of one year. On charge 7, being possession of a substance, material or equipment for trafficking in a drug of dependence, the applicant was sentenced to five years’ imprisonment and three years was ordered to be cumulated on charge 1. On each of charges 8 and 9, being possession of precursor chemicals, the applicant was sentenced to two years’ imprisonment and no orders for cumulation were made.
[8]Director of Public Prosecutions v Lipp (Unreported, County Court of Victoria, 22 February 2013, Judge Lacava), [30].
Under ground 1, the applicant contends that the individual sentence imposed on charge 1 failed adequately or at all to reflect his plea of guilty and was manifestly excessive. First it was submitted that the sentence made no allowance for the plea of guilty and in particular its utilitarian benefit. The sentencing judge stated in his sentencing remarks that he took into account the applicant’s plea of guilty, but noted that it had not reduced the length of the trial overall in any way and that the plea of guilty was thus of little value or utility. Despite that finding his Honour reduced the sentence that he would otherwise have imposed by six months as indicated in the s 6AAA declaration. On appeal, the respondent submitted that at best, a small discount could be justified to reflect the public policy consideration that the applicant had been willing to facilitate the course of justice. It may be said that the sentencing judge’s approach was unduly favourable to the applicant, as his Honour made a general finding that the applicant had shown ‘no signs of remorse.’ Although he did not explicitly state that he included charge 1 in that finding, it must be the case that, like the other firearms in the applicant’s possession, the applicant had no remorse with respect to his possession of the firearm the subject of charge 1. It was not suggested on the plea or on appeal that any other conclusion was open.
In support of the contention that the sentence on charge 1 was manifestly excessive, the applicant, relying upon observations in Armistead v The Queen,[9] submitted that a sentence in the order of two years was appropriate where the firearm is possessed for a specific criminal purpose and associated with ongoing criminal activity. That submission must be rejected. A sentence of two years will usually be at the low end of the range of sentences that might be imposed where the possession is associated with ongoing criminal activity.[10] As Redlich JA explained in the very recent case of Berichon v The Queen:
The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham and Armistead v The Queen. The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order. Such sentences will be appropriate where the firearm is for example possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity….
It was submitted on appeal that even if the offence is placed in this more serious category, a sentence in the order of two years was appropriate. I had observed in Armistead, where the sentence the subject of appeal was two years, that such a sentence was not appropriate because the conduct did not fall within the more serious category. Cases which fell into the less serious category normally attract sentences considerably lower than two years’ imprisonment. But once an offence falls into the more serious category, plainly sentences well beyond two years may be imposed. In this case, for the reasons explained by Priest JA, a sentence of three years and six months was appropriate.[11]
[9][2011] VSCA 84, [12].
[10]R v Rudd (2009) 23 VR 444; Hudson v The Queen (2010) 30 VR 610.
[11][2013] VSCA 319, [26], [31] (citations removed).
It was conceded on appeal that the inference was properly to be drawn that the applicant’s possession of the loaded Ruger handgun and loaded Ruger magazine and the large quantity of unexplained cash were all associated with the applicant’s ongoing criminal activity. The loaded handgun was behind the passenger seat in the motor vehicle and ready for use. At the time of his arrest the applicant was driving in a public place. The applicant had a prior conviction for possession of an unlicensed pistol. In those circumstances, it is not reasonably arguable that a sentence of three years and six months was beyond a sound exercise of the sentencing discretion.
The sentences imposed on charges 2–5 were reconcilable with the sentence imposed on charge 1. On the plea, the applicant’s counsel had acknowledged that the firearm offences were of a serious order. The firearms the subject of charges 2–5 were located in various places in the house and some were not loaded. It was conceded on the appeal that the inference was inescapable that the possession of each of these firearms was associated with the applicant’s criminal activities.
Finally, the applicant submitted that the sentence on charge 1 was irreconcilable with the sentences imposed on the other firearm charges. The sentences imposed on charges 2–5 will not greatly advance the question of whether the sentence imposed on charge 1 is manifestly excessive. Structural objections to the sentences imposed on multiple similar charges in an indictment are to be discouraged, as the sentencing judge is entitled to adopt a broad-brush approach so that disconformity between sentences on particular charges will not usually provide a sufficient basis to impugn the instinctive synthesis.[12] In any event, when an objective assessment is undertaken of the circumstances in which the offence was committed, the sentencing judge was well entitled to consider that the circumstances in which the applicant possessed the firearm the subject of charge 1 were more serious than the other firearm charges.
[12]Hoy v The Queen [2012] VSCA 49, [18].
We turn then to ground 2. The applicant complains that the sentences imposed on charges 2 and 6, the order for cumulation on charge 7 and the non-parole period were manifestly excessive and offended the principle of totality.
In oral argument the applicant contended that a sentence of eight and a half years infringed the principle of totality, as it exceeded the objective gravity of the entirety of the applicant’s conduct. He relied upon the fact that the sentence on charge 6 exceeded more than half the maximum penalty prescribed by Parliament. Thus it was said that sentence was plainly excessive. But the applicant did not dispute the respondent’s oral submission that the applicant was in possession of approximately half a kilogram of explosives, 40 electric igniters, 192 detonators, a reel of fuse and 129 igniter cord connectors, most of which were found inside the house, and that their possession was to protect the applicant’s drug manufacturing activity. It was conceded during oral argument that as the explosives in the shed were connected to detonators and were in readiness to be exploded, the inference was properly to be drawn that their purpose was to destroy the clandestine laboratory if it became necessary. A sentence in excess of half the prescribed maximum was within the range of sentences reasonably open.
No complaint is made about the individual sentence of five years imposed on charge 7. Rather, it is contended that the order to cumulate three of the five years of the sentence discloses error. It is submitted that the order itself, the resultant total effective sentence and the non-parole period offended the principle of totality and rendered the sentences manifestly excessive.
In our view, none of these contentions are reasonably arguable. For the reasons already given, the sentence imposed on charge 1, being the base sentence, was well within the range of sentences reasonably open. The order for cumulation of 12 months on charge 2 for possession of the loaded and operative 9 mm Owen submachine gun and the order for cumulation of 12 months of the sentence for possession of explosives as an adjunct to the applicant’s drug manufacturing activity cannot be said to be excessive. When added to the order of three years’ cumulation of the sentence imposed on charge 7, a total effective sentence of eight years and six months’ imprisonment was produced, which did not in our view fall outside a sound exercise of the sentencing discretion.
Each of these offences fell into the most serious category of such offences.[13] The sentencing judge found that the applicant had no signs of remorse and very little prospect of rehabilitation. The applicant had a number of prior convictions including one for aggravated burglary of a pharmaceutical factory for the purpose of acquiring chemicals for drug manufacture. He had been sentenced to six years and six months’ imprisonment with a non-parole period of four years. At the time that he committed the present offences, he was in hiding to avoid facing charges of trafficking a commercial quantity of a drug of dependence. For that offending, he was later sentenced by Coghlan JA to three years and six months’ imprisonment, 18 months of which was to be served cumulatively upon the sentences the subject of the present appeal. Coghlan JA fixed a new non-parole period of seven years and three months. Having regard to the objective gravity of the applicant’s conduct and the absence of any significant mitigating factor personal to the applicant, the contention that the total effective sentence or non-parole period infringed the principle of totality is unsustainable.
[13]Ashdown v The Queen (2011) 219 A Crim R 454.
We turn finally to ground 3. The applicant contends that the convictions recorded on charges 8 and 9 and the sentences passed thereon rendered the applicant liable to double punishment. The applicant seeks an order that the convictions and sentences on charges 8 and 9 should be quashed and a judgment of acquittal entered. Alternatively, he submits that the sentence imposed on charge 7 and the order for cumulation made thereon should be moderated to accommodate the applicant’s conviction and sentence on charges 8 and 9.
The applicant submits on appeal that charge 7 was said to wholly subsume the facts the subject of charges 8 and 9. It was put that in reality, there was only a single offence which relevantly and adequately accommodated the applicant’s criminality in toto, so that the laying of charges 8 and 9 on the indictment served only to invite the potential for error and the risk of double punishment.[14] The applicant thus contended that the convictions on charges 8 and 9 were unfair and constituted double punishment for the same act, namely possession of the precursor chemicals, which was common to charge 7 and charges 8 and 9.
[14]See Davy v The Queen (2011) 207 A Crim R 266, 272–3 [22]; Lecornu v The Queen (2012) 222 A Crim R 73, 79 [20]–[22].
At the plea in mitigation, counsel who appeared for the applicant at trial and at sentence submitted only that there was an overlap between charges 7, 8 and 9. He conceded that as the legislature had created a separate offence for such possession it was not improper to lay separate charges for the offences of possessing precursor chemicals but submitted that there should be an order for full concurrency of those sentences with the sentence imposed on charge 7. The prosecutor, without amplification, contended that some cumulation was appropriate.
In his sentencing remarks, the judge who had presided over the trial stated that charges 7 to 9 should be grouped together. He considered them all to be serious charges but that the offending, the subject of charges 8 and 9, was in furtherance of charge 7. His Honour ordered total concurrency of the sentences imposed on charges 8 and 9 with the sentence imposed on charge 7.
Double punishment is a concept that may arise at different stages of the criminal process: prosecution, conviction and punishment.[15] In Lecornu v The Queen,[16] Maxwell P distilled three distinct propositions concerning double punishment from the majority judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen.[17] Those propositions, which Maxwell P, for ease of reference, called Rules 1, 2 and 3, were as follows:
Rule 1A plea in bar (autrefois convict or autrefois acquit) is available only in relation to an offence the elements of which are the same as, or are included in, the elements of an offence for which an accused has been tried to conviction or acquittal.
Rule 2Where no plea in bar is available in relation to the second offence, prosecution of that offence may nevertheless be stayed as an abuse of process if it would be vexatious or oppressive or unfair.
Rule 3As a matter of sentencing, persons found guilty of two offences must not be punished twice for an act which is common to the two offences.[18]
[15]Pearce v The Queen (1998) 194 CLR 610, 614 [9].
[16](2012) 222 A Crim R 73 (‘Lecornu’).
[17](1998) 194 CLR 610.
[18]Lecornu v The Queen (2012) 222 A Crim R 73, 77 [12] (citations omitted).
These rules of double punishment can be viewed as derived either from the common law or from s 51(1) of the Interpretation of Legislation Act 1984.[19] Maxwell P further observed that Rules 1 and 2 go to conviction in the sense that if conviction has been secured in breach of either of the two aspects of double jeopardy, the conviction will ordinarily be set aside, whereas Rule 3 goes only to sentence. His Honour further observed that the recording of a conviction is itself a punishment so that sometimes Rule 3 will also require the quashing of a conviction.
[19]R v Bekhazi (2001) 3 VR 321, 330 [15]; R v Langdon (2004) 11 VR 18; Lecornu v The Queen (2012) 222 A Crim R 73, 85 [44].
The applicant did not contend that the conviction on charge 7 operated as a plea in bar against the convictions on charges 8 and 9. They were not charges where the elements of the offences were identical or where the elements of one were wholly included in the other.[20] The applicant criticised the laying of charges 8 and 9 but did not assert that the form of the indictment amounted to an abuse of process. His primary argument was that the conviction and sentence on charges 8 and 9 constituted double punishment as the act of possessing the precursor chemicals was common to the offences so as to enliven Rule 3.
[20]Pearce v The Queen (1998) 194 CLR 610, 618 [24]; Island Maritime Ltd v Filipowski (2006) 226 CLR 328, 339 [28].
Section 71A of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’) provides:
(1)A person who, without being authorised by or licensed under this Act or the regulations to do so, possesses a substance, material, document containing instructions relating to the preparation, cultivation or manufacture of a drug of dependence or equipment with the intention of using the substance, material, document or equipment for the purpose of trafficking in a drug of dependence is guilty of an indictable offence and liable to Level 5 imprisonment (10 years maximum).
(2)Nothing in this section is limited by s 71C.
(3)Nothing in this section is limited by s 71D.
Section 71D of the Act provides:
Possession of Precursor Chemicals
A person who, without being authorised by or licensed under this Act or the regulations (if any) to do so or otherwise without a lawful excuse, possesses a prescribed precursor chemical in a quantity that is not less than the prescribed quantity applicable to that precursor chemical is guilty of an indictable offence and liable to a penalty of not more than 600 penalty units or Level 6 imprisonment (5 years maximum) or both.
Section 71D was introduced by the Drugs, Poisons and Controlled Substances (Amendment) Act 2006. As the explanatory memorandum to that Act states:
The offence is directed to the possession of a prescribed precursor chemical in a quantity that is not less than the prescribed quantity applicable to that precursor chemical in circumstances where the possession is without authority or licence or otherwise without lawful excuse.[21]
The Minister for Police & Emergency Services in his Second Reading Speech stated:
Precursor chemicals are those which are used to create other drugs (such as amphetamine and ecstasy). As with tablet presses, it is recognised that there are a variety of lawful reasons to possess such chemicals (scientific research, manufacturing etc), and the inclusion of a ‘lawful excuse’ defence ensures that legitimate users will not be captured by this offence. The schedule of chemical to be prescribed will be the subject of extensive consultation with the industry and other key stakeholders during the development of the regulations.[22]
[21]Explanatory Memorandum, Drugs, Poisons and Controlled Substances (Amendment) Act 2006, s 12.
[22]Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2006, 1543 (Tim Holding, Minister for Police and Emergency Services).
As an offence under s 71A is not the same or practically the same as an offence under s 71D, there being different elements, the doctrine of autrefois convict was inapplicable,[23] and the applicant did not submit otherwise.
[23]Reardon v Baker [1987] VR 887, 898 (Phillips J); R v Weeding [1959] VR 298, 300–1.
As to the application of Rule 2, it was not submitted, nor could it be, that the laying of the last two charges constituted an abuse of process. The offences under s 71A and 71D are different. Section 71A(3) was inserted to remove any doubt about the right to lay both charges. As a s 71D offence was not an alternative to s 71A there could be no objection to the laying of the s 71D charges. The offence under s 71A may, as it did in the present case, involve multiple acts, only one of which included possession of the precursor chemical the subject of a s 71D offence. For the purpose of s 71A it is not necessary that the possession of that chemical be of any particular quantity, but s 71A requires proof of a particular intent associated with such possession. An offence under s 71D maybe made out where the prosecution has established possession of no less than the requisite quantity of the precursor chemical but fails to establish the necessary intent to use the substance for the purpose of trafficking required by s 71A. Under s 71D, the onus is upon the accused to establish that he has a lawful excuse for such possession.[24]
[24]Section 104 of the Act.
There may be circumstances in which the prosecution though charging both an offence under ss 71A and 71D does not seek to rely upon the possession of the precursor chemical as evidence in support of the offence under s 71A. Where the prosecution seeks to rely upon the possession the subject of a s 71D charge as evidence in support of a s 71A charge, there may be cases where, by reason of fairness, a verdict on the s 71D charge should not be taken, and if it has been, that the conviction be set aside.[25] For example, if the only act relied upon under s 71A is possession of a substance which is the precursor chemical, the subject of the s 71D charge, and there is no dispute at trial as to the nature or quantity of the precursor chemical that the prosecution alleges was possessed, the trial judge should instruct the jury that if they find the accused guilty of the s 71A charge, they should not return a verdict on the s 71D charge.[26] That course would be appropriate whether or not s 71A is viewed as the more grave offence because it requires proof of an intent to traffick.
[25]R v Weeding [1954] VR 298; R v Burr (Unreported, Court of Criminal Appeal Victoria, 6 April 1989, Crockett J, Gray and McDonald JJ); R v Glaister (1997) 92 A Crim R 161, 165.
[26]R v Sessions [1998] 2 VR 304; Seymour (1954) 38 Cr App R 68.
In this case the prosecution under s 71A apparently relied upon possession of many substances and materials. Amongst those items were the precursor chemicals the subject of charges 8 and 9. In such a case, unless the evidence and the issues at trial were such that the trial judge could say with certainty that a verdict of guilty on the s 71A charge meant that the jury was satisfied that the accused possessed the precursor chemicals in the quantities alleged with the requisite intent so that the act the subject of the s 71D charge formed part of the s 71A conviction, a verdict on the s 71D charges would have to be taken. The state of the material before us does not enable us to say whether the trial judge could have concluded on completion of the evidence that if there was a verdict of guilt on the s 71A charge, no verdict should be taken on the s 71D charges.
The applicant in effect invokes Rule 3. As was recognised in Lecornu, Rule 3 will sometimes require the quashing of a conviction even though no abuse of process arises as it was open to the prosecution to lay both charges. Although the elements and the acts the subject of s 71A and s 71D are not identical, the applicant contends that the offences did overlap and that the same act was relied upon to establish both offences. As the judgment of Hayne JA (as he then was) in R v Sessions makes clear, it is the same act or omission which gives rise to double punishment, and it does not matter that the intention which must be proved under each offence is different.[27] In determining the extent of that overlap, ‘excessive subtleties and refinements’ should be avoided.[28]
[27][1998] 2 VR 304, 310, 312 (‘Sessions’).
[28]Pearce v The Queen (1998) 194 CLR 610, 623 [42].
In R v Langdon[29] the Langdons faced multiple count presentments which included counts of trafficking in amphetamine contrary to s 71 of the Act and possession of amphetamine contrary to s 73 of the Act. Having been convicted and sentenced to separate terms of imprisonment on each count, they argued that they had been subjected to double punishment. Gillard AJA, with whom Batt and Eames JJA agreed, said that the counts were separate and distinct acts despite the fact that the amphetamine, the subject of the possession count, was relied upon as part of the proof of trafficking. As the possession was part and parcel of the trafficking, so that there was no additional criminal act to punish, applying the reasoning from Sessions, the Court determined that the only course open was to quash the conviction.[30]
[29](2004) 11 VR 18.
[30]Ibid 39.
This approach in Langdon has been applied in subsequent decisions of this Court.[31] It has also been followed in other jurisdictions.[32]
[31]R v Henderson-Drife [2007] VSCA 211; R v Orgill [2007] VSCA 236; Lecornu v R & Anor (2012) 222 A Crim R 73, 83–4 [38]–[41].
[32]R (Cth) v Milne (No 1) (2010) 260 FLR 166; Milne v The Queen [2012] NSWCCA 24, [265].
The sentencing judge approached sentence on the basis that the prosecution had relied upon the possession of the precursor chemical as part of its proof of the s 71A charge. As we have already said, we are unable to say whether the trial judge could have concluded from the way in which the trial was conducted whether a verdict of guilty on the s 71A offence necessarily meant that the jury were satisfied that the applicant possessed the precursor chemicals and in the quantity alleged by the prosecution. It was as a consequence of the verdicts on charges 8 and 9 that the sentencing judge was able to conclude that the jury were satisfied that the applicant had in his possession the precursor chemical in the quantity alleged.
In this case, the offence against s 71A is of a different character from s 71D because the legal elements are different and because the gravamen of the offence is possession accompanied by a particular intent. Unlike cases such as Sessions, where the same act constituted both offences, the offence under s 71A involved multiple acts that did not necessarily include the act the subject of the s 71D charges. There were acts the subject of the s 71A charge that had to be taken into account in sentencing that would not be taken into account on the s 71D charges.[33] For these reasons, this was not a case where Rule 3 required that the convictions on charges 8 and 9 be quashed.
[33][1998] 2 VR 304, 315.
The sentencing judge was right to sentence in a manner he considered consistent with the jury verdict — namely, that the act of possession of the chemical precursors in the quantity alleged was one act amongst a number upon which the jury likely relied to conclude that the applicant was guilty of the charge under s 71A. As it was consistent with the jury verdict that the act constituting possession of the precursor chemical in no less than the prescribed quantity was subsumed within the charge of possession of a substance with the intent of using it to traffick in a drug of dependence, his Honour was right to order concurrency of the s 71D sentences with the s 71A sentence, so as to avoid double punishment for the act common to both charges.
We would grant the applicant’s extension of time to file his notice of appeal, and refuse leave to appeal on grounds 1 and 2. We would grant leave to appeal on ground 3.
The appeal should be dismissed.
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