Rasimi v The Queen - [2011] VSCA 365

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0209
MITAT RASIMI	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE JA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 November 2011
DATE OF JUDGMENT	14 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 365
JUDGMENT APPEALED FROM	DPP v Rasimi (Unreported, County Court of Victoria, Judge Millane, 16 June 2010)

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CRIMINAL LAW – Sentencing – Trafficking in a drug of dependence contrary to s 71AC of Drugs Poisons and Controlled Substances Act 1981 (Vic) – Maximum penalty 15 years’ imprisonment – Whether sentencing judge required to take into account as relevant sentencing consideration lesser maximum penalty of 10 years’ imprisonment applicable to offence of trafficking in controlled substance contrary to s 304.2 of Criminal Code (C’th) – Apparent conflict of authority between decisions of Victorian Court of Appeal and decision of New South Wales Court of Appeal – Possible Commonwealth Constitutional ramifications – Appeal referred to Registrar of Criminal Appeals for listing to be heard before not less than three Judges of Appeal – R v Young, Unrep, Vic CCA, 2/12/82 – R v Liang and Li (1995) 82 A Crim R 39; R v McEachern (2006) 15 VR 615; R v Gordon [2009] QCA 209; R v El Helou (2010) 276 ALR 734, referred to – Drugs Poisons and Controlled Substances Act 1981 (Vic), s 71AC; Criminal Code (C’th) s 304.2; Constitution (C’th), s 109.

APPEAL – Criminal procedure – Amendment – Application to add ground of appeal – Late application after appeal set down for hearing – Late applications to add grounds of appeal not to be entertained in absence of very exceptional circumstances – Proposed amendment directed to important point of principle of general application – Apparent conflict of authority between decisions of Victorian Court of Appeal and decision of New South Wales Court of Appeal – Possible Commonwealth Constitutional ramifications – Application allowed – Appellant directed go give notice pursuant to s 78B of Judiciary Act 1903 (C’th) – Supreme Court (Criminal Procedure) Rules 2008, Order 2.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M J Croucher	Lewenberg & Lewenberg
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

BEACH AJA:

This is an application for leave to amend grounds of appeal against sentence by adding thereto the following:

The learned judge erred in failing to take into account the fact that the Commonwealth offence of trafficking in a controlled drug contrary to s 304.2 of the Criminal Code of the Commonwealth, (a) could have been charged instead of the State offence of trafficking a drug of dependence contra to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981, (b) was in the circumstances of this case just as appropriate as each State offence and (c) is less punitive than the State offence since it carries a maximum penalty of ten years' imprisonment compared with the maximum penalty…

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 Rasimi v The Queen

Details

AGLC: Rasimi v The Queen [2011] VSCA 365
Case: [2011] VSCA 365
Decision Date: 14 November 2011

CaseChat Overview and Summary

The appeal before the court involved the appellant, Rasimi, who was convicted for trafficking in a drug of dependence under section 71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic), with a maximum penalty of 15 years’ imprisonment. The legal issue was whether the sentencing judge was required to consider the lesser maximum penalty of 10 years' imprisonment applicable to the federal offence of trafficking in a controlled substance under section 304.2 of the Criminal Code (C’th). This issue presented a conflict between the decisions of the Victorian Court of Appeal and the New South Wales Court of Appeal, with potential ramifications under the Commonwealth Constitution.

The court considered the implications of the conflict between these authorities and the possibility of constitutional issues arising from section 109 of the Constitution, which addresses the supremacy of Commonwealth law over state law in cases of inconsistency. Given the importance of the principle at stake and its potential general application, the court allowed the late application to amend the grounds of appeal. The appellant was directed to give notice under section 78B of the Judiciary Act 1903 (C’th), and the appeal was referred to the Registrar of Criminal Appeals for listing before not less than three judges of appeal.

The court's decision underscores the importance of resolving conflicts in legal principles, especially when they involve potential constitutional questions. The allowance of the late application to amend the grounds of appeal reflects the gravity of the legal issues raised. The case was thus referred for further hearing to ensure a comprehensive resolution of the conflicting authorities and their constitutional implications.

Orders