R v Nor - [2005] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 265 of 2002
No. 371 of 2003

THE QUEEN
	v.
CHHOM NOR

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 February 2005
DATE OF JUDGMENT:	25 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 46

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Criminal Law – Drugs – Trafficking, unlawful possession of a drug of dependence – Double Punishment – Whether conviction for possession amounted to double punishment – Separate criminal acts – Possession of drug not deemed trafficking – Application for leave to appeal against conviction refused – Drugs, Poisons and Controlled Substances Act 1981, ss.70, 71, 73.

Criminal Law – Sentencing – Double punishment – Counts of possession and trafficking in a drug of dependence – Offence of trafficking not based on possession of drug – Offender not punished twice for same criminal act – Head sentence and non parole period not manifestly excessive – Appeal against sentence dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Gilbert Ms R.E. Carlin	Solicitor to Director of Public Prosecutions (Cth.) Ms K. Robertson, Solicitor for Public Prosecutions (Vic.)
For the Appellant	Mr D.P. Sheales	Haines & Polites

WINNEKE, P.:

I will invite Chernov, J.A. to give the first judgment in this matter.

CHERNOV, J.A.:

On 18 December 2002 the appellant, Chhom Nor, who is now aged 34, pleaded guilty in the County Court to three counts contained in two presentments, one filed on 18 December 2002 ("the State presentment") and the other on 19 November 2002 ("the Commonwealth presentment"). The State presentment contained one count which charged the appellant with trafficking a drug of dependence (heroin) on 5 July 2001 contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act"). Count 1 in the Commonwealth presentment alleged that the appellant trafficked a drug of dependence (heroin) between 21 December 2001 and 25 January 2002 contrary to s.71(1) of the Act and count 2 alleged possession by him of a drug of dependence (heroin) on 25 January 2002 contrary to s.73(1) of the Act. The offence of trafficking a drug of dependence carries a maximum penalty of 15 years' imprisonment and the relevant maximum custodial penalty for the offence of possessing a drug of dependence is 5 years.[1] The appellant admitted 13 prior convictions from two court appearances, one in 1997 and one in 1999, including trafficking and possession of heroin, failing to answer bail and handling stolen goods. The appellant has not, however, served a sentence of imprisonment in relation to those offences.
[1]Section 73(1)(c) of the Act.

After hearing a plea in mitigation on 18 December 2002 made on the appellant's behalf, on 19 December 2002 the learned sentencing judge imposed the following sentences of imprisonment: two years in relation to the State presentment, four years on the first count in the Commonwealth presentment and twelve months on count 2. His Honour ordered that one year of the term of imprisonment imposed on the State presentment…

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 Nor

Details

AGLC: R v Nor [2005] VSCA 46
Case: [2005] VSCA 46
Decision Date: 25 February 2005

CaseChat Overview and Summary

In the case of R v Nor, the appellant was convicted of trafficking and unlawful possession of a drug of dependence. The decision was made by the court of appeal, which was asked to consider whether the appellant's conviction for possession amounted to double punishment and whether the sentence was manifestly excessive. The appellant argued that his conviction for possession amounted to double punishment, as it was based on the same act that constituted the trafficking offence. However, the court found that the possession offence was not based on the same criminal act as the trafficking offence, and therefore, the appellant was not punished twice for the same criminal act.

The legal issues before the court were whether the appellant's conviction for possession amounted to double punishment and whether the sentence was manifestly excessive. The court found that the possession offence was not based on the same criminal act as the trafficking offence, and therefore, the appellant was not punished twice for the same criminal act. The court also found that the head sentence and non-parole period were not manifestly excessive. The court held that the appellant's conviction for possession did not amount to double punishment because the possession offence was not based on the same criminal act as the trafficking offence. The court also held that the sentence was not manifestly excessive, as the head sentence and non-parole period were within the range of sentences that could be imposed for the offences.

The court of appeal refused the appellant's application for leave to appeal against his conviction and dismissed his appeal against his sentence. The court held that the appellant's conviction for possession did not amount to double punishment because the possession offence was not based on the same criminal act as the trafficking offence. The court also held that the sentence was not manifestly excessive, as the head sentence and non-parole period were within the range of sentences that could be imposed for the offences. The court found that the appellant's conviction for possession did not amount to double punishment because the possession offence was not based on the same criminal act as the trafficking offence. The court also held that the sentence was not manifestly excessive, as the head sentence and non-parole period were within the range of sentences that could be imposed for the offences.

Orders