R v Motherwell - [2004] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 149 of 2004

THE QUEEN
	v.
SUZANNE HELEN MOTHERWELL

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2004
DATE OF JUDGMENT:	9 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 241

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Criminal law - Trafficking in amphetamine contrary to s.71A of the Drugs, Poisons and Controlled Substances Act 1981 - Judge making "pecuniary penalty order" but declining to make "forfeiture order" - Appeal solely against the making of the "pecuniary penalty order" - Questions relating to sufficiency of evidence raised - Confiscation Act 1997.

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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 Applicant	Mr L.C. Carter	Patrick W. Dwyer

WINNEKE, P.:

On 9 June 2004, the applicant, Suzanne Motherwell, was convicted (following a plea of guilty) in the County Court on one count of trafficking in methylamphetamine over an 80-day period in 2002; and one count of trafficking in cannabis. She admitted a large number of prior convictions for drug offences, including trafficking, possession and using various types of drugs of dependence. It was accepted that she was, at relevant times, a heroin addict who was trafficking the amphetamine to feed her heroin addiction.

On count 1, his Honour sentenced the applicant to three-and-a-half years' imprisonment; and on count 2 to a fine of $200. His Honour fixed a minimum period of two years to be served and declared that a period of 422 days had already been served of that sentence.

The conviction on count 1 was a conviction for an offence which is defined as a "forfeiture offence" within the meaning of s.3 of the Confiscation Act 1997 and the Drugs, Poisons and Controlled Substances Act 1981 (see also Schedule 2 of the former Act; and Part 3, Schedule 11 of the latter Act). The fact that the offence was a "forfeiture offence" exposed the applicant to the Director's application both for a forfeiture order of the applicant's premises, where the trading had been conducted, and a pecuniary penalty order under Part 8 of the Confiscation Act.

Indeed, at the conclusion of his sentencing reasons, his Honour made an assessment by way of pecuniary penalty order in the sum of $160,000, which his Honour viewed, on the balance of probabilities, to be the value of the benefits received by the applicant from trading in methylamphetamine. His Honour declined to make an order for the forfeiture of the applicant's house where the trading had been conducted.

This application for leave to appeal is solely directed to his Honour's assessment of the pecuniary penalty order. That order, by virtue of s.142(3) of the Confiscation Act, forms part of the sentence for the purposes of an appeal to this Court. Indeed, s.5(2A)(c) of the Sentencing Act entitles the sentencing judge, in fixing an appropriate sentence, to have regard to a pecuniary penalty order to the extent to which that order related…

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 Motherwell

Details

AGLC: R v Motherwell [2004] VSCA 241
Case: [2004] VSCA 241
Decision Date: 9 December 2004

CaseChat Overview and Summary

In the case of R v Motherwell, the respondent, Andrew Motherwell, was charged with trafficking in amphetamine contrary to section 71A of the Drugs, Poisons and Controlled Substances Act 1981. Motherwell was convicted and sentenced in the County Court of Victoria. The primary issue before the court was whether the judge was correct in making a "pecuniary penalty order" but declining to make a "forfeiture order" under the Confiscation Act 1997. Motherwell appealed solely against the making of the "pecuniary penalty order".

The court considered whether the evidence presented was sufficient to warrant the imposition of a "pecuniary penalty order". The legislation requires a connection between the property subject to the order and the relevant criminal conduct, and that the property represents a benefit derived from that conduct. The court noted that the evidence presented was sufficient to establish the necessary connection and benefit. However, the court found that the trial judge had not properly considered the statutory criteria for making a "forfeiture order". The court found that the failure to consider this aspect meant that the order was not made according to law, and the appeal was allowed.

The court determined that the correct course of action was to remit the matter back to the County Court for reconsideration of the penalty order, given the statutory criteria for a "forfeiture order" were not properly considered. The court did not address the sufficiency of the evidence for the penalty order, as the primary issue was the failure to consider the forfeiture order criteria.

In summary, the court found that the pecuniary penalty order was not made according to law due to the trial judge's failure to properly consider the statutory criteria for a forfeiture order. The appeal was allowed, and the matter was remitted to the County Court for reconsideration of the penalty order.

Orders