JUDGES:	BUCHANAN and NETTLE JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 July 2007
DATE OF JUDGMENT:	4 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 270

---

Criminal Law – Trafficking in drugs of dependence – Pills and powder containing a mixture of drugs – Counts broke down mixtures into component drugs – Counts duplicated offending – Quantities of drugs present in a mixture to be aggregated – Plea of guilty – Appeal against conviction allowed – Miscarriage of justice – Applicant re-sentenced to a total effective sentence of 17 years’ imprisonment with a minimum term of 13 years’ imprisonment – Drugs, Poisons and Controlled Substances Act 1981 (No 9719), ss 71, 71AA.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon Solicitor for Public Prosecutions
For the Applicant	Mr S A Shirrefs SC	Grigor and Associates

BUCHANAN JA:

On 28 September 2003 the applicant was arrested by the police at a house in Clayton South. Searches of those premises and others with which the applicant was connected revealed powder and tablets containing drugs of dependence. The powder and tablets weighed some 14.3 kilograms. In addition, there were 2.1 grams of cocaine. The material found by the police consisted of tablets, powders, liquids and other items. The bulk of the material, approximately two-thirds of the total weight, was in the form of tablets.

The applicant was charged under the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’) and was released on bail. On 16 August 2004 the applicant was arrested in the course of arranging a drug transaction from his car. A search of the car revealed 3,000 ecstasy tablets. This discovery led to further charges under the Act.

The circumstances in which those events took place were revealed by surveillance evidence and intercepted telephone conversations. The applicant manufactured the drugs for sale using a hydraulic steel pill press and was engaged in transactions involving the transfer of money interstate and abroad.

The applicant was arraigned in the County Court and pleaded guilty to the counts in two presentments. The first presentment concerned the drugs found on 28 September 2003. The presentment contained six counts, each alleging trafficking in a drug of dependence between 8 August, the date of the first intercepted telephone conversation, and 28 September 2003. Count 1 alleged trafficking in a large commercial quantity of MDMA, commonly called ecstasy, count 2 trafficking in a large commercial quantity of methylamphetamine, count 3 trafficking in a large commercial quantity of amphetamine, count 4 trafficking in a commercial quantity of dimethylamphetamine, count 5 trafficking in ketamine and count 6 possession of cocaine. The second presentment concerned the drugs found on 16 August 2004. There were four counts, each alleging that the applicant trafficked in a drug of dependence on 16 August 2004. Count 1 alleged trafficking 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 Ahmed

Details

AGLC: R v Ahmed [2007] VSCA 270
Case: [2007] VSCA 270
Decision Date: 4 December 2007

CaseChat Overview and Summary

The case of R v Ahmed was heard by the Court of Appeal in New South Wales, where the appellant was convicted of trafficking in drugs of dependence, specifically pills and powder containing a mixture of drugs. The prosecution broke down the mixtures into their component drugs, leading to a situation where the counts were considered to be duplicative. The appellant pleaded guilty, but subsequently appealed against his conviction on the basis of a perceived miscarriage of justice. The central legal issue was whether the quantities of drugs present in a mixture should be aggregated for the purposes of sentencing. The court had to determine if the counts were correctly formulated and if the sentence was proportionate.

The Court of Appeal found that the counts were indeed duplicative, as they broke down mixtures into their component drugs, which is not in line with the statutory framework under the Drugs, Poisons and Controlled Substances Act 1981. The court held that the appropriate approach is to aggregate the quantities of drugs present in a mixture. The court determined that the appellant's appeal against conviction was well-founded, and the original sentence resulted in a miscarriage of justice. Consequently, the appellant was re-sentenced to a total effective sentence of 17 years’ imprisonment, with a minimum term of 13 years’ imprisonment.

The court's decision was grounded in the principle that the total amount of drugs in a mixture should be considered for sentencing purposes. By correctly aggregating the quantities, the court aimed to ensure that the sentence was fair and reflected the true extent of the offending. The appeal was allowed, and the re-sentencing reflected the court's determination to rectify the perceived injustice in the original sentence. This decision underscores the importance of correctly interpreting statutory provisions and the impact of such interpretations on sentencing outcomes.

Orders