R v Tan - [2005] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 347of 2002

THE QUEEN
	Respondent
v.
CHIN POH TAN	Applicant

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 February 2005
DATE OF JUDGMENT:	18 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 54	Second Revision: 5 April 2005

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Criminal Law – Sentencing – Drugs – Trafficking, possession of prohibited import – Double punishment – Whether sentences for possession amounted to double punishment – Offence of trafficking partially based on possession of drug for sale – Offender punished twice for same criminal acts – Application for leave to appeal against sentence granted, appeal heard instanter, allowed and sentences set aside – Conviction recorded but no sentence imposed in respect of possession counts where possession of drug deemed trafficking – Applicant re-sentenced to total effective sentence of 11 years’ imprisonment with non-parole period of 8 years – Drugs, Poisons and Controlled Substances Act 1981, ss.70, 71; Customs Act 1901 (Cth), ss.233, 233B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. K. Armstrong	Commonwealth Director of Public Prosecutions
For the Applicant	Mr. C.B. Boyce	Victoria Legal Aid

WINNEKE, P.:

I agree with Chernov, J.A.

CHERNOV, J.A.:

On 8 February 2002 the applicant, Chin Poh Tan, who is now aged 47, pleaded guilty to a presentment containing four counts, namely, two counts (counts 1 and 3) of possessing not less than a commercial quantity (20,347 and 36,588 tablets respectively) of a prohibited import namely 3,4 methylenedioxymethamphetamine (MDMA or ecstasy) contrary to s.233(1)(ca) of the Customs Act 1901 (Cth), one count (count 2) of possessing not less than a trafficable quantity (2,986 tablets) of the same drug contrary to the above provision of the Customs Act and one count (count 4) of trafficking not less than a commercial quantity of that drug contrary to s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (“the drug Act”). The presentment alleged that the offences were committed on 10 March 2000. The maximum custodial sentence prescribed for the offences charged by counts 1 and 3 is life imprisonment and for the other offences in question is 25 years’ imprisonment. After hearing a plea in mitigation on 18 October 2002, the learned sentencing judge sentenced the applicant on 17 December 2002 to the following terms of imprisonment: on count 1 – eight years; on count 2 – four years; and on count 3 – eight years. His Honour ordered that the sentence on each count commence on 17 December 2002 and that the non-parole period in relation to these counts be six years. In relation to count 4, the sole State offence, the applicant was sentenced to 12 years’ imprisonment with a non-parole period of nine years’ imprisonment and it was ordered that this sentence also commence on 17 December 2002. No order as to cumulation was made in respect of count 4, and thus, the total effective sentence imposed on the applicant was 12 years’ imprisonment with a minimum term…

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 Tan

Details

AGLC: R v Tan [2005] VSCA 54
Case: [2005] VSCA 54
Decision Date: 18 March 2005

CaseChat Overview and Summary

In the case of R v Tan, the appellant was convicted of various drug trafficking offences and possession of a prohibited import. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant challenged his sentences on the basis that they constituted double punishment for the same criminal acts. Specifically, the appellant argued that his sentences for possession amounted to double punishment, as the offence of trafficking was partially based on the possession of the drug for the purpose of sale.

The primary legal issue before the court was whether the sentences imposed for possession amounted to double punishment for the same criminal acts. The court considered the statutory framework, including the Drugs, Poisons and Controlled Substances Act 1981 and the Customs Act 1901 (Cth). The court noted that the appellant was punished twice for the same criminal acts, as the possession of the drug was integral to the trafficking offence. The court concluded that the sentences for possession were effectively included in the trafficking offence, and thus constituted double punishment.

The Court of Appeal allowed the appeal, set aside the sentences for possession, and re-sentenced the appellant. The court imposed a total effective sentence of 11 years' imprisonment with a non-parole period of 8 years. The court held that while the conviction for possession would be recorded, no sentence would be imposed in respect of those counts, as the possession of the drug was deemed to be part of the trafficking offence. The appeal was allowed, and the sentences were set aside and re-imposed as per the court's direction.

Orders