CRIMINAL LAW – Drug offences – Allegation of double jeopardy concerning prosecution and conviction – Test to apply – No plea in bar nor abuse of process of court.
SENTENCING – Alleged double jeopardy in punishment – Offences of trafficking and being in possession of a drug of dependence – Double punishment – Being punished twice for the same criminal acts – Effect of double punishment – In circumstances conviction and sentence quashed – Total sentence and non-parole period not excessive.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr. J.D. McArdle, Q.C.
Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant
D.M. Langdon
For the Appellant
S. Langdon
Mr. T.E. Wraight
Mr. M. J. Croucher
Michael Amad
Michael Amad
BATT, J.A.:
I agree with Gillard, A.J.A. In my opinion, the possession of the 7.3 grams of amphetamine was part of the trafficking, as the prima facie evidence of trafficking it constituted by virtue of s.73(2) of the Drugs, Poisons and Controlled Substances Act 1981 was not displaced. There was double punishment and, with the benefit of hindsight, it can be seen that the pleas of guilty to count 9 should not have been accepted. It may be that the quashing of the conviction and sentence on count 9 in each case re-opens the whole sentencing discretion (cf. s.569(1) of the Crimes Act 1958), but, despite the appellants’ arguments, I do not think that a different sentence should be passed on the other counts.
EAMES, J.A.:
I agree with the orders proposed by Gillard, AJ.A. and with his reasons.
GILLARD, A.J.A.:
On 18 August 2003, David Matthew Langdon and his wife, Susan Langdon, were arraigned before the County Court sitting at Wodonga.
Mr Langdon was charged with two counts of handling stolen goods; one count of trafficking in a drug of dependence, namely, amphetamine; one count of possession of substances for the purpose of trafficking in a drug of dependence; one count of theft and one count of possession of a drug of dependence, namely, amphetamine. He pleaded guilty to all counts.
Mrs Langdon was charged with one count of trafficking in a drug of dependence, namely, amphetamine; one count of possession of a substance for the purpose of trafficking in a drug of dependence; one count of handling stolen goods; and two counts of possession of a drug of dependence, namely, pseudoephedrine and amphetamine respectively. She also pleaded guilty to all counts.
The maximum penalties for handling stolen goods was 15 years, 15 years and $100,000 for trafficking, 10 years for possession of drug making substances…
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.
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Details
AGLC
R v Langdon [2004] VSCA 205
Case
[2004] VSCA 205
Decision Date
CaseChat Overview and Summary
In the case of R v Langdon, the respondent, Langdon, was appealing against his conviction and sentence. Langdon had been found guilty of drug trafficking and possession of a drug of dependence. The case reached the court following the quashing of Langdon's previous conviction and sentence, raising questions about double jeopardy and the appropriateness of the new sentence. The appeal centred on whether the new sentence was excessive or manifestly unjust, and whether there had been a demonstrable error in the sentencing process.
The legal issues before the court included whether the sentence imposed was manifestly excessive or unjust, and whether there was a demonstrable error in the sentencing process. Langdon argued that the trial judge had erred in considering the maximum penalty for trafficking rather than the lesser penalty for possession. The court was required to determine whether the sentence was excessive, manifestly unjust, or if there was a demonstrable error in the sentencing process.
The court found that there was no demonstrable error in the sentencing process. The maximum penalty for trafficking was correctly identified by the trial judge, and the evidence did not lead to the conclusion that the lesser penalty for possession should apply. The court considered the sentencing process and the circumstances of the case, concluding that the sentence was not manifestly excessive or unjust. The court emphasised the importance of consistency in sentencing and the need for the trial judge to exercise discretion in accordance with the law.
The court dismissed Langdon's appeal against his conviction and sentence, affirming the trial judge's decision. The sentence and non-parole period were deemed appropriate and not excessive, given the circumstances of the case and the principles of consistency in sentencing.
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
In Australian Coal and Shale Employees’ Federation v The Commonwealth[20] Kitto, J. referred to “the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.” (Emphasis added.) His Honour referred to House v. The King. Although the case was a civil one, in my view his Honour’s observations would apply to the exercise of a discretionary judgment in sentencing. In my opinion, the first step in the consideration of the correctness of a discretionary judgment must be to determine whether there is any demonstrable error in what the trial judge did. In carrying out that exercise, the error may be found in what the judge said expressly or implied, or the result of the sentencing process suggests an error which can be identified. In the absence of demonstrable error, was the result so unreasonable or unjust that the appellate court can conclude that the trial judge failed to exercise his discretion in accordance with the law? Often the question is asked whether the sentence is manifestly excessive or manifestly inadequate. When the test is described in that way, it cannot be overlooked that the excessiveness or inadequacy must be manifest, that is, patently obvious when one considers the result, taking into account all relevant circumstances. Consistency in sentencing is important, and must be borne in mind by the sentencing judge. However, it is indeed a rare case where the facts of the prisoner’s criminal activity and his personal matters are the same as or similar to the activities and personal factors of another prisoner. Sometimes there are examples where there are like circumstances such as importing drugs into Australia by a courier. Consistency in punishment is a reflection of what is a fundamental element in any rational and fair system of criminal justice. See Lowe v. The Queen per Mason, J. [21] The court must strive for consistency when dealing with like offenders. See R. v. Olbrich[22]. The fact is that it is rare to find two cases which are the same and accordingly reference to other cases is of little assistance in sentencing and the appellate process. Although Mr Langdon’s first submission raises the question of manifest excessiveness, I think it is more appropriate to consider the grounds which purport to raise a demonstrable error. Ground 9 is in these terms: It was submitted that the learned judge mistakenly commenced with the proposition that the maximum penalty was five years. Counsel for the prosecution stated that was the maximum and there was no demur from defence counsel. It was submitted that the evidence should have led the learned judge to find on the balance of probabilities that the amphetamines were not possessed for the purpose of trafficking and therefore the lesser maximum penalty of 12 months should have been applied.