Legal Research
Cases
R v Adams

R v Adams

Case [2007] VSCA 37 15 March 2007

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 250 of 2004

THE QUEEN
	v
STEVEN ADAMS

---

JUDGES:	BUCHANAN, VINCENT and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 January 2007
DATE OF JUDGMENT:	15 March 2007
DATE OF FURTHER HEARING:	2 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 37	First Revision – 3 April 2007

---

Criminal Law – Sentence – Possessing a commercial quantity of the narcotic substance MDMA – Manifest excess – Whether judge erred in equating ecstasy with heroin – R v Pidoto and O’Dea [2006] VSCA 185 – Whether judge erred with respect to his findings of applicant’s role – Applicant United States national – Hardship arising from applicant’s family residing overseas – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R E Carlin with Mr R Davis	Commonwealth Director of Public Prosecutions
For the Applicant	Mr C B Boyce	Leanne Warren and Associates

BUCHANAN JA:

In my opinion the application for leave to appeal against sentence should be dismissed for the reasons stated by Vincent JA.

VINCENT JA:

The applicant, a United States resident, was found guilty, on 10 September 2004, by the jury empanelled on his trial in the County Court at Melbourne on one count of possessing a commercial quantity of the narcotic substance MDMA,[1] contrary to paragraph 233B(1)(c) of the Customs Act 1901.
[1]This drug is more generally known as ecstasy.

He admitted three prior convictions from two court appearances in the United States Superior Court, Bergen County, New Jersey, between 15 February 1979 and 15 December 2004. They related to the possession and distribution of varying small quantities of a controlled substance (marijuana).

After hearing a plea in mitigation of penalty, the sentencing judge, on 27 September 2004, imposed a term of imprisonment of nine years, in respect of which a non-parole period of seven years was fixed.

The Grounds

The application is based upon the grounds set out in the applicant’s Full Statement of Grounds that:

1.The sentence in all the circumstances of this case was manifestly excessive.
2.The trial judge erred in usurping the role of the jury and sentencing the applicant on his own finding of the facts in the case.
3.The trial judge erred in characterizing the applicant’s role as being more important than it was and in finding that the applicant was more deeply involved in the criminality than was

justified by the evidence.
4.The trial judge erred in equating the drug ecstasy with heroin for sentencing purposes.
5.The trial judge erred in not giving sufficient weight to the hardship upon the applicant’s family being overseas and that the applicant was alone in the foreign country.[2]
[2]To further grounds (6 and 7) were not addressed and need not be pursued.

The Background

On 14 December 2003, a man named Peter Gojevski (“Gojevski”) arrived in Melbourne from the USA. His visit was connected with the importation of two hired “Envirotainers”.[3] An elaborate set of e-mails was sent from overseas to various enterprises in…

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 R v Adams

Details

AGLC: R v Adams [2007] VSCA 37
Case: [2007] VSCA 37
Decision Date: 15 March 2007

CaseChat Overview and Summary

In the Supreme Court of Victoria, the respondent, the Crown, sought to appeal against the sentence imposed on the applicant, Adams, who was convicted of possessing a commercial quantity of MDMA. The appeal was concerned with the severity of the sentence and whether the trial judge erred in his assessment of the drug's value and the applicant's role in the drug offence. The Court of Appeal was asked to determine whether the sentence imposed was manifestly excessive and whether the trial judge erred in his evaluation of the MDMA's equivalence to heroin and the applicant's involvement in the drug operation.

The primary issues before the court were whether the sentence imposed was manifestly excessive and whether the trial judge erred in his assessment of the MDMA's value relative to heroin and the applicant's role in the drug operation. The court had to consider if the trial judge's equating of ecstasy with heroin was appropriate and whether his findings regarding the applicant's role were supported by the evidence.

The Court of Appeal found that the sentence was not manifestly excessive, despite the trial judge's error in equating MDMA with heroin. The court held that the trial judge's error did not impact the overall sentence, as the sentence imposed was within the range of sentences that could be imposed for such an offence. The court also found that the trial judge's findings regarding the applicant's role in the drug operation were supported by the evidence. The court further considered the hardship caused by the applicant's family residing overseas but found that this did not warrant a reduction in sentence.

In conclusion, the Court of Appeal dismissed the appeal and affirmed the sentence imposed by the trial judge. The court held that the sentence was not manifestly excessive and that the trial judge's errors did not impact the overall sentence. The court also found that the trial judge's findings regarding the applicant's role were supported by the evidence and that the hardship caused by the applicant's family residing overseas did not warrant a reduction in sentence.

Orders