JUDGES:	MAXWELL, P., CALLAWAY, BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2006
DATE OF ORDERS:	8 June 2006
DATE OF REASONS:	8 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 185	2^nd Revision 21 September 2006

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CRIMINAL LAW – Sentencing – Drugs – Trafficking in a commercial quantity of a drug of dependence – Ecstasy – Whether harmfulness of drug in question a relevant sentencing consideration – Whether sentencing judge can evaluate relative harmfulness of a drug of dependence – Sentencing hierarchy in statutory scheme based only on quantity of drug trafficked – Harmfulness of drug an irrelevant consideration – Appeal allowed in part – Drugs, Poisons and Controlled Substances Act 1981 s.71AA, Schedule 11.

CRIMINAL LAW – Application to be heard as amicus curiae.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant Pidoto	Mr P.G. Priest, Q.C. with Mr. T.E. Wraight	Camerons
For the Appellant O’Dea	Mr D.A. Dann	Balmer & Associates
For Fitzroy Legal Service (amicus curiae)	Mr P.F. Tehan, Q.C. with Mr J.P. Wheelahan	Holding Redlich

MAXWELL, P.,
BUCHANAN, J.A.,
VINCENT, J.A.,
EAMES, J.A.:

These appeals raise an issue of general importance about sentencing for offences of trafficking in a drug of dependence, contrary to the provisions of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the DPCS Act”). Put shortly, the issue is as follows: is it relevant for the sentencing Judge to consider the harm(s) associated with the drug the subject of the trafficking charge?

There are two related questions which need to be addressed, as follows:

A.When a person is being sentenced for the offence of trafficking in a drug of dependence, is it relevant for the Court to consider –

(i)the nature and extent of the harm which the particular drug causes, both directly to users of the drug and indirectly to the community as a whole;and

(ii)whether the particular drug of dependence is, by those measures, more or less harmful than another drug of dependence?

B.If so, on what information is the Court entitled to act in assessing the harmfulness of the particular drug?

Summary of conclusions

In our view, the first question should be answered in the negative. As a matter of statutory construction, the harmfulness of the drug is irrelevant to the exercise of the sentencing discretion. The second question accordingly does not arise.

(When we refer to “the harmfulness of the drug”, we mean the general characteristics of the drug in question, not the harm which may be proved to have been caused by the particular offender’s trafficking in that drug.)

It is clear, we think, that Parliament did not intend the sentencing court to make any judgment about the (relative) harmfulness…

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 Pidoto and O'Dea

Details

AGLC: R v Pidoto and O'Dea [2006] VSCA 185
Case: [2006] VSCA 185
Decision Date: 8 September 2006

CaseChat Overview and Summary

In the case of R v Pidoto and O'Dea, the defendants were convicted for trafficking in a commercial quantity of a drug of dependence, specifically ecstasy. They appealed their sentences on the basis that the sentencing judge had taken into account the relative harmfulness of the drug, which they argued was not a legally relevant consideration. The appeal was heard in the higher court, which was tasked with determining whether the sentencing judge was correct in considering the harmfulness of the drug and whether an application to be heard as an amicus curiae was valid.

The central legal issue before the court was whether the harmfulness of a drug of dependence could be a relevant consideration in sentencing for drug trafficking offences. The defendants argued that the statutory scheme under the Drugs, Poisons and Controlled Substances Act 1981 provided a hierarchy based solely on the quantity of the drug trafficked, and thus the harmfulness of the drug was irrelevant. The court had to determine if the sentencing judge was correct in evaluating the relative harmfulness of the drug and whether this was an appropriate consideration under the Act.

The court held that the harmfulness of a drug of dependence was not a relevant consideration in sentencing for drug trafficking offences. The statutory scheme provided a hierarchy that was based solely on the quantity of the drug trafficked, and any consideration of harmfulness would be outside the legislative framework. The court found that the sentencing judge had erred in taking the harmfulness of the drug into account. The appeal was allowed in part, and the case was remitted to a lower court for resentencing without consideration of the harmfulness of the drug. The application to be heard as an amicus curiae was deemed valid and allowed, providing an opportunity for additional perspectives in the case.

Orders