R v Peart; R v Sorokin - [2015] NSWCCA 321

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Peart; R v Sorokin [2015] NSWCCA 321
Hearing dates: 4 December 2015
Date of orders: 16 December 2015
Decision date: 16 December 2015
Before: Ward JA at [1];
R A Hulme J at [61];
Fagan J at [62]
Decision:
(1) Allow the appeal.
(2) Set aside the order made by Toner SC DCJ on 9 September 2015 quashing counts 1 and 2 on the indictment presented against Kylie Anne Peart and Daniel Alexander Sorokin on 8 September 2015.

Catchwords:
CRIMINAL LAW – appeal against quashing of two counts on an indictment – commonwealth drug offences – quashed counts charged offences of importing controlled drug, being a drug analogue of a listed border controlled drug – third count charge offence of trafficking same drug, being a listed controlled drug – whether s 301.9(2) of the Criminal Code (Cth) means that if a substance is listed as a controlled drug for the purposes of manufacturing and trafficking offences then it cannot be an analogue of a border controlled drug for the purposes of import and export offences

STATUTORY INTERPRETATION – Criminal Code (Cth) s 301.9(2) – ordinary meaning of words
WORDS AND PHRASES – “or” – whether should be read distributively
Legislation Cited: Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB
Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth)
Criminal Appeal Act 1912 (NSW), s 5C
Criminal Code 1995 (Cth), ss 11.2A, 300.2, 301.1, 301.4, 301.9, 302.4, 307.3
Criminal Code Regulations 2002 (Cth)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Poulakis (No 3) [2015] ACTSC 191
Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514
Re the Minister for Works; ex parte Duffy [2002] WASCA 295
Saeed v Minister of Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Category: Principal judgment
Parties: Regina (Appellant)
Kylie Anne Peart and Alexander Daniel Sorokin (Respondents)
Representation:
Counsel:

R v Sorokin
Mr R J Bromwich SC/Mr A Williams (applicant)
Mr E Ozen (respondent)

R v Peart
Mr R J Bromwich SC/Mr A Williams (applicant)
Mr R C Pontello (respondent)

Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Bongarzoni Legal (Respondent Peart)
Benjamin & Leonardo Criminal Defence (Respondent Sorokin)

File Number(s): 2014/00168274 and 2014/00168297 (Peart);2014/00168324 and 2014/00168357 (Sorokin)
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

09 September 2015

Before:

Toner SC DCJ

File Number(s):

2014/00168274 and 2014/00168297 (Peart)
2014/00168324 and 2014/00168357…

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

Case: [2015] NSWCCA 321
Decision Date: 16 December 2015

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia in the case of R v Peart; R v Sorokin. The respondents, Peart and Sorokin, were convicted of drug trafficking and importation offences under the Commonwealth Criminal Code. The High Court was asked to determine whether the respondents' appeal against the quashing of two counts on the indictment should be allowed. The counts in question related to importing a controlled drug, specifically a drug analogue of a listed border controlled drug, and trafficking in the same drug, which was a listed controlled drug.

The primary legal issue was the interpretation of section 301.9(2) of the Criminal Code, which deals with controlled drugs. The respondents argued that a drug listed under the Code for manufacturing and trafficking could not simultaneously be considered an analogue of a border controlled drug for import and export offences. The Court needed to determine whether the word "or" in the relevant section should be read distributively, meaning that the drug could not be both a controlled drug and an analogue of a border controlled drug at the same time.

The Court held that the word "or" in section 301.9(2) of the Criminal Code should not be read distributively. The Court applied the principle of statutory interpretation that words in a statute should be given their ordinary meaning, and in this case, the ordinary meaning of "or" allowed for the possibility that a drug could be both a controlled drug and an analogue of a border controlled drug. Therefore, the Court found that the respondents' argument was not supported by the statutory language, and the quashing of the counts was not justified. The appeal was dismissed, and the convictions for the drug offences were upheld.

The final orders of the Court were that the appeal against the quashing of the two counts was dismissed, and the convictions for the drug offences under the Criminal Code were affirmed.

Orders