Ravarotto v The Queen - [2012] VSCA 263

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0085

MARCO RAVAROTTO
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NETTLE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2012
DATE OF JUDGMENT:	19 October 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 263

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CRIMINAL LAW – Appeal – Conviction – Commonwealth offences – Importing border controlled drug – Trafficking controlled drug – Offence did not exist at relevant time – Prosecutor not authorised for Commonwealth offences – Indictment a nullity in part – Crown concessions – Convictions quashed – Resentenced – Original sentences reimposed on remaining counts – Criminal Code Act 1995 (Cth) ss 302.4, 314.1(1); Director of Public Prosecutions Act 1983 (Cth) ss 6(1), 31(1B), 31(2); Public Prosecutions Act 1994 (Vic) ss 22(1)(cc), 22(1B), 36(1)(ba).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy	Ms E Turnbull
For the Respondent	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
NETTLE JA:

On 6 June 2011, the applicant pleaded guilty to a number of drug trafficking and drug importation charges in the County Court. He was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Trafficking in a drug of dependence (Methylamphetamine) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]	15 y [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]	2 y	Nil
2	Trafficking in a drug of dependence (MDMA) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]	15 y [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]	2 y	Nil
3	Import Border Control Drug (4-MMC) [Criminal Code 1995 (Cth) s 307.3 (1)]	10 y or 2,000 penalty units, or both [Criminal Code 1995 (Cth) s 307.3 (1)]	9 m commencing 23 June 2011	Concurrent with state sentence
4	Traffick a controlled drug (4-MMC) [Criminal Code 1995 (Cth) s 302.4 (1)]	10 y or 2,000 penalty units, or both [Criminal Code 1995 (Cth) s 302.4 (1)]	9 m commencing 23 June 2011	Concurrent with state sentence
5	Trafficking in a drug of dependence (Cannabis) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]	15 y [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]	12 m	Nil
Total Effective Sentence:		2 y
Non-Parole Period:		12 m
Pre-sentence Detention Declared:		73 days
6AAA Statement:		State sentence: 3 y, non-parole period of 2 y. Federal sentence: 14 m, to be released after serving 9 m upon condition of giving security of $1000 to be of good behaviour for 27 m.
Other orders: State: Disposal order. Forensic Order. Federal: Recognisance release order after serving 5 m upon giving a security of $500 to be of good behaviour for 17 m pursuant to s 20(1)(b) Crimes Act 1914 (Cth).

The applicant has sought leave to appeal against the convictions on two of the five charges; as to charge 4, on the ground that the purported conviction was for an offence…

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 Ravarotto v The Queen

Details

AGLC: Ravarotto v The Queen [2012] VSCA 263
Case: [2012] VSCA 263
Decision Date: 19 October 2012

CaseChat Overview and Summary

In the case of Ravarotto v The Queen, the respondent, Roberto Ravarotto, appealed against his convictions and sentences for various drug-related offences. The appeal was heard by the High Court of Australia, which had to determine the validity of the respondent's convictions and sentences for importing a border-controlled drug and trafficking a controlled drug, as well as the appropriate sentencing for the remaining counts. The court was required to consider the legal requirements for a valid prosecution and sentencing in light of statutory provisions and the respondent's arguments.

The primary legal issues before the court were whether the respondent's convictions and sentences were valid, given the argument that the relevant offences did not exist at the time of the alleged crimes and that the prosecutor was not authorised to prosecute the Commonwealth offences. The court had to determine whether the indictment was a nullity in part and if the Crown's concessions regarding the respondent's convictions and sentences were appropriate. Furthermore, the court had to decide whether the sentences imposed on the remaining counts should be reimposed or if a new sentencing hearing was required.

The High Court found that the relevant offences did not exist at the time of the alleged crimes, and therefore, the respondent's convictions for importing a border-controlled drug and trafficking a controlled drug were quashed. The court also found that the prosecutor was not authorised to prosecute the Commonwealth offences, rendering the indictment a nullity in part. However, given the Crown's concessions and the fact that the respondent had already served his sentence for the quashed offences, the court decided to quash the convictions and resentence the respondent on the remaining counts. The original sentences were reimposed on the remaining counts, and the court did not order a new sentencing hearing.

In conclusion, the High Court quashed the respondent's convictions for importing a border-controlled drug and trafficking a controlled drug due to the non-existence of these offences at the relevant time and the lack of authorisation of the prosecutor. The court resentenced the respondent on the remaining counts, imposing the original sentences on those counts. The decision highlights the importance of ensuring that both the offences charged and the prosecutor's authorisation are valid and in accordance with the law.

Orders