R v Lelah - [2002] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 256 of 2000

THE QUEEN

FRED

LELAH

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JUDGES:	BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2002
DATE OF JUDGMENT:	27 June 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 96

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CRIMINAL LAW – Conviction - Offering to supply drug to induce person to continue in prostitution – Whether trafficking in the drug merely an alternative

CRIMINAL LAW - Sentencing – Cumulation and concurrency – Counts of offering to supply a drug (heroin) to induce person to continue in prostitution and trafficking in the drug in relation to each of four persons – Whether judge erred in partially cumulating all sentences.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan Q.C.	Ms K. Robertson, Solicitor for
With Ms S. Pullen	Public Prosecutions
For the Applicant	Mr. D. O’Doherty	Cole & Magazis
(pro bono)
BATT, J.A. EAMES, J.A. O'BRYAN, A.J.A.:

The applicant, now aged 49, was tried in the County Court on a presentment containing 19 counts to which he pleaded not guilty. The trial judge directed the jury to find the applicant not guilty of counts 1, 2, 3, 5, 10, 17, 18 and 19. The jury found the applicant not guilty of counts 4 and 12. The jury found the applicant guilty of four counts of offering to supply a drug of dependence to a person with the intention of inducing her to engage or continue to engage in prostitution (counts 6, 8, 13 and 15), one count of intimidating a person with that intention (count 11) and four counts of trafficking in a drug of dependence, namely, heroin (counts 7, 9, 14 and 16).
The counts of offering to supply a drug of dependence with the above intention were against s.8(1)(b) Prostitution Control Act 1994 for which the maximum penalty was 10 years. The count of intimidating was against s.8(1)(c) of the Prostitution Control Act for which the maximum penalty was 10 years. The counts of trafficking in a drug of dependence were against s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981[1] for which the maximum penalty was 15 years.
[1] As in force before its amendment by Act No. 61 of 2001.
The counts on which sentences were imposed had been committed between 1 April 1999 and 11 August 1999, a period of some four-and-a-half months.
The applicant admitted fourteen prior convictions from nine court appearances between 1972 and 1997. They included convictions in 1986 and 1989 of living off the earnings of prostitution and managing a brothel, in 1994 and 1997 of entering an agreement for the provision of sexual services by a child and in 1997 of being an unlicensed prostitution service provider (two charges).
After a plea was made the sentencing judge on 6 September 2000 imposed sentences of imprisonment as follows:

Count 6 Two years
Count 8 Two years
Count 11 Two years
Count 13 18 months
Count 15 18 months
Count 7 18…

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 Lelah

Details

AGLC: R v Lelah [2002] VSCA 96
Case: [2002] VSCA 96
Decision Date: 27 June 2002

CaseChat Overview and Summary

The matter before the court was an appeal against conviction and sentence by Lelah. The appellant was convicted of multiple counts of offering to supply a drug to induce a person to continue in prostitution, and trafficking in the drug in relation to each of four different persons. The trial judge found the appellant guilty of all counts and sentenced him to a total of twenty-five years' imprisonment with non-parole periods ranging from seven to fifteen years. The legal issues before the court were whether the trafficking in the drug was merely an alternative to offering to supply the drug to induce prostitution, and whether the trial judge erred in partially cumulating all sentences.

The court found that the trafficking in the drug was not merely an alternative to offering to supply the drug to induce prostitution, but rather was a separate and distinct offence. The court held that the appellant's actions in trafficking in the drug facilitated the commission of the other offences, and that the trafficking charges were not merely alternative means of committing the same offence. The court also found that the trial judge did not err in partially cumulating all sentences. The court held that the trial judge had properly considered the appellant's criminal history and the seriousness of the offences, and that the sentence imposed was not manifestly excessive.

The appeal was dismissed, and the convictions and sentences upheld. The court found that the trial judge had properly exercised his discretion in imposing the sentence, and that there was no error in the cumulation or concurrency of the sentences. The court held that the sentence was appropriate in the circumstances, and that there was no need for any further orders.

Orders