R v Pepe - [2000] VSCA 208

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 301 of 1999

THE QUEEN
	v.
LUCIO ANTHONY PEPE

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JUDGES:	TADGELL, CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	4 and 5 September 2000
DATE OF JUDGMENT:	3 November 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 208

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Criminal law – Conviction – Conspiracy to traffick in drug of dependence – Relationship between Div. 10 of Crimes Act 1958 and Drugs, Poisons and Controlled Substances Act 1981 – Whether conflict in practical operation of legislation – Whether presentment a nullity as disclosing no offence – Drug offences – Knowledge and intent – Where possession to be obtained in future with intent to sell or supply – Evidence of accomplice – No corroborative evidence – Whether verdict unsafe and unsatisfactory – Crimes Act 1958 ss. 321, 321C, 321D, 321E, Drugs, Poisons and Controlled Substances Act 1981, s.79

Criminal law – Conviction – Parity – Delay – Applicant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C. and Ms M. Sexton	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr R. Richter, Q.C. and Mr P.J. Haag	Galbally & O’Bryan

TADGELL, J.A.:

I agree with Charles, J.A.

CHARLES, J.A.:

The applicant who was born on 10 August 1956 pleaded not guilty on 25 October 1999 in the County Court at Melbourne to a presentment charging one count of conspiracy to traffick in a drug of dependence (count 1) and burglary (count 2). The trial commenced and at the close of the Crown case a submission of no case to answer was made. The judge determined that there was a case to go to the jury. No evidence was then led in support of the defence. On 5 November 1999 the jury returned a verdict of guilty on both counts.

The applicant admitted two prior convictions from court appearances on 7 May 1990 and 15 January 1991. The conviction on 7 May 1990 related to cultivating a drug of dependence and on that charge the applicant had been sentenced to four years' imprisonment with a non-parole period fixed of two-and-a-half years.

On 16 November 1999 the applicant was sentenced on count 1 to four-and-a-half years' imprisonment and on count 2 to two years' imprisonment, the total effective sentence being four-and-a-half years' imprisonment. The judge fixed a non-parole period of three years and nine months.

On 30 August 1996 three co-offenders, Richard McLean, Domenic Gisonda and Gary Whelan all pleaded guilty to a single count of burglary arising out of the same circumstances as the count of burglary charged against the applicant. On 6 September 1996 Whelan was sentenced to three years', McLean to two years' and Gisonda to 12 months' imprisonment in respect of this charge. McLean and Whelan sought leave to appeal against sentence, McLean's appeal being later abandoned and Whelan's appeal dismissed.

The applicant now seeks leave to appeal against conviction and sentence on grounds to which I shall turn shortly.

The prosecution's case was as follows.…

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 Pepe

Details

AGLC: R v Pepe [2000] VSCA 208
Case: [2000] VSCA 208
Decision Date: 3 November 2000

CaseChat Overview and Summary

In the case of R v Pepe, the appellant was convicted of conspiracy to traffic in a drug of dependence. The dispute involved the interpretation and application of various sections of the Crimes Act 1958 and the Drugs, Poisons and Controlled Substances Act 1981, specifically regarding the relationship between these pieces of legislation and the practical operation of the laws in question. Additionally, the case examined whether the presentment disclosed an offence, the necessary knowledge and intent for possession with intent to sell or supply, and the admissibility of accomplice evidence without corroboration.

The court had to determine if there was a conflict between the two Acts, particularly whether the presentment constituted a nullity as it did not disclose an offence. Furthermore, the court assessed whether the evidence of the accomplice was sufficient, even in the absence of corroborative evidence, and whether the verdict was unsafe and unsatisfactory. The court also considered the appellant's application for re-sentencing on the basis of parity and delay.

The court found no conflict in the practical operation of the legislation and upheld the conviction. It held that the presentment did disclose an offence and that the evidence of the accomplice, even without corroboration, was sufficient to uphold the verdict. The court dismissed the argument that the verdict was unsafe and unsatisfactory. Finally, the court granted the application for re-sentencing on the grounds of parity and delay.

Orders