SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 250 of 2004
| THE QUEEN |
| v |
| STEVEN ADAMS |
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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 |
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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.
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| 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…
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- AGLC
- R v Adams [2007] VSCA 37
- Case
- [2007] VSCA 37
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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