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R v Yacoub

R v Yacoub

Case [2006] VSCA 203 5 October 2006

Sentencing

Drugs

Trafficking in a commercial quantity of a drug of dependence

Attempting to pervert the course of justice

Failure to take into account the effect of restraining orders under s.18 of the Confiscation Act 1997

Whether sentence affected by consideration of harmfulness of steroids

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 185 of 2005

THE QUEEN
	v.
SAM (SARKIS) YACOUB

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JUDGES:	MAXWELL, P., CALLAWAY, BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2006
DATE OF ORDER:	8 June 2006
DATE OF REASONS:	5 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 203

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Criminal law – Sentencing – Drugs – Trafficking in a commercial quantity of a drug of dependence – Anabolic steroids – Trafficking – Possession – Attempting to pervert the course of justice – Failure to take into account the effect of restraining orders under s.18 of the Confiscation Act 1997 – Whether sentence affected by consideration of harmfulness of steroids – R. v. Pidoto and O’Dea [2006] VSCA 185 – Leave to appeal granted but no different sentence imposed – Drugs, Poisons and Controlled Substances Act 1981, ss.71AA, 71AC, 73 – Crimes Act 1958 s.320.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. with Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.G. Priest, Q.C. with Mr M.J. Croucher	Randles Cooper & Co.

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

We joined in the orders made by the Court on 8^th June 2006 for the reasons given by Eames, J.A.

CALLAWAY, J.A.:

I joined in the orders made by the Court on 8^th June 2006 for the reasons given by Eames, J.A. at [3]-[19] and [30]-[42]. It is unnecessary for me to say anything about ground 2.[1]

EAMES, J.A.:

[1]See R. v. Pidoto and O’Dea [2006] VSCA 185.

The applicant sought leave to appeal against sentences imposed by a judge of the County Court on 14 June 2005 with respect to five counts to which he pleaded guilty, as follows:

On count 1, trafficking in a drug of dependence, namely testosterone, in a commercial quantity, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981, he was sentenced to 18 months’ imprisonment. The maximum penalty for that offence was 25 years’ imprisonment.
On count 2, trafficking in a drug of dependence, namely methandienone, contrary to s.71AC, he was sentenced to six months’ imprisonment. The maximum penalty for that offence was 15 years’ imprisonment.
On count 3, possession of a drug of dependence, namely boldenone, contrary to s.73, he was sentenced to three months’ imprisonment (out of a maximum of 12 months’ imprisonment).[2]

On count 4, possession of a drug of dependence, namely stanozol, contrary to s.73, he was sentenced to three months’ imprisonment.[3]
On count 5, attempting to pervert the course of public justice, a common law offence, he was sentenced to two years’ imprisonment. That offence carries a maximum of 25 years’ imprisonment, by virtue of s.320 of the Crimes Act 1958.

[2]The judge accepted that the drugs involved were for personal use and not for the purpose of trafficking. The maximum penalty upon the finding of personal use possession, only, was 12 months’ imprisonment, not 5 years’ imprisonment.

[3]See…

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 Yacoub

Details

AGLC: R v Yacoub [2006] VSCA 203
Case: [2006] VSCA 203
Decision Date: 5 October 2006

CaseChat Overview and Summary

The case of R v Yacoub was heard in the Victorian Court of Appeal. The appellant, Yacoub, was convicted of trafficking in a commercial quantity of a drug of dependence, specifically anabolic steroids, and of possessing those steroids with intent to traffic. He was also convicted of attempting to pervert the course of justice by disposing of the steroids. The primary issue before the court was whether the primary judge had failed to properly consider the effect of restraining orders on the sentence, as required by section 18 of the Confiscation Act 1997. Additionally, the court had to determine whether the sentence should have been affected by the consideration of the harmfulness of the steroids.

The court examined the sentencing principles outlined in R v Pidoto and O’Dea and considered whether the primary judge had adequately addressed the impact of the restraining orders. The court found that the primary judge had failed to consider the effect of the restraining orders, which was a significant oversight. However, the court noted that the sentence imposed was still within the appropriate range, and thus, the failure to consider the restraining orders did not affect the outcome. The court also considered whether the harmfulness of the steroids should have influenced the sentence but concluded that the primary judge had correctly assessed the seriousness of the offences.

The appeal was allowed on the ground that the primary judge had not taken into account the effect of the restraining orders, but no different sentence was imposed because the sentence was still appropriate. The court emphasised the importance of considering all relevant factors in sentencing, including the effect of restraining orders and the harmfulness of the drugs involved. The appeal was dismissed, and the original sentence was upheld.

Orders