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:

1. 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).

1. 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 not known to the law;  as to charge 3, on the ground that the allegation in the indictment was not properly before the Court.

1. The Crown concedes both grounds of appeal — correctly, in our view.  The Crown submission explains in clear terms the basis of the concessions made.  In the circumstances, we think it appropriate to set that explanation out in full.[1]

   [1]Paragraphs [4]–[17] are taken from the Crown’s submission.

Ground 1 – charge 4 was not an offence known to the law

1. The applicant seeks leave to appeal the conviction in relation to charge 4 on the ground that the purported conviction for trafficking 4-methylmethcathinone (4-MMC) is for an offence not known to the law. The applicant contends that, while methcathinone is a border controlled drug for the purpose of the drug importation provisions described in s 307.3 of the Criminal Code Act 1995 (Cth), s 314.1(1) contains an exhaustive definition of controlled drugs and neither 4-MMC nor any variant of it is included in that list.

1. The Crown concedes that, subject to qualification, the applicant’s contention is correct.  The qualification is that the offence of trafficking in 4-MMC is now an offence known to the law.  (The legislative history is set out below.)  The offence did not, however, exist at the time the relevant conduct was engaged in.  For this reason, the Crown concedes that the sentence should be set aside and the conviction quashed.

Legislative history of 4-methylmethcathinone (4-MMC)

1. Presently, the definition of a controlled drug contained in s 314.1(1) of the Criminal Code Act 1995 (Cth) includes both 4-MMC and the methcathinone from which it is derived. Methcathinone appears as item 9A and 4-MMC as item 11A in the table contained in that section.

1. Items 9A and 11A were inserted by the Criminal Code Amendment Regulations 2011 (No 1) (the Interim Regulations) on 7 April 2011, in exercise of the power conferred under ss 5 and 301.1 of the Criminal Code Act 1995 (Cth). The Interim Regulations were registered on 8 April 2011 and commenced on 9 April 2011. By Schedules 1 and 1A, the Interim Regulations amend the definition of ‘controlled drug’ contained in the Criminal Code Regulations 2002 (Cth) so as to include 4-MMC and methcathinone. The Explanatory Statement to the Interim Regulations provides that, once a substance is prescribed in interim regulations, it will be subject to the ‘serious drug offences’ in the Criminal Code Act 1995 (Cth).

1. The Act which amends the definition of s 314.1(1) of the Criminal Code Act 1995 (Cth) to include 4-MMC and methcathinone is the Crimes Legislation Amendment (Powers and Offences) Act 2012 (the Amending Act).  By items 3 and 4 of Schedule 5, 4-MMC and methcathinone are incorporated into the definition of ‘controlled drug’.  By virtue of the commencement period prescribed by s 2 of the Amending Act, Schedule 5 commences on 4 April 2012, being the date of Royal Assent.

1. Thus it is not correct to say that s 314.1(1) of the Criminal Code Act 1995 (Cth) contains an exhaustive definition of controlled drugs since the definition of ‘controlled drug’ may be expanded by regulation. Nor is it correct that the offence of trafficking in the controlled drug of 4-MMC is ‘not an offence known at law’. As of 9 April 2011, being the commencement date of the Interim Regulations, trafficking 4-MMC constitutes trafficking in a controlled drug contrary to s 302.4 of the Criminal Code Act 1995 (Cth) by operation of the Interim Regulations. The applicant’s conduct, however, occurred between 6 August and 7 October 2009, that is, prior to 9 April 2011. Neither the Interim Regulations nor the Amending Act have retrospective application.

Prosecution of federal charges 3 and 4 invalid — prosecution of Commonwealth offences by Victorian Director of Public Prosecutions

1. Indictment Number Y03049666 is invalid to the extent that it purports to exercise the authority necessary to commence prosecutions on indictment for offences against the laws of the Commonwealth.

1. Pursuant to ss 6(1)(a)-(b) of the Director of Public Prosecutions Act 1983 (Cth) (the Commonwealth DPP Act), the function of the Commonwealth Director of Public Prosecutions (the CDPP) includes instituting and carrying on prosecutions on indictment for indictable offences against the laws of the Commonwealth. Section 9(2) of the Commonwealth DPP Act provides that, where the CDPP institutes a prosecution on indictment for an offence against a law of the Commonwealth, the indictment must be signed by the CDPP, or for and on behalf of the CDPP by a person authorised by the CDPP, by instrument in writing, to sign indictments.

1. By virtue of s 31(1B), the CDPP may, by instrument of delegation in writing signed by him or her, delegate this function to the Director of Public Prosecutions for Victoria (VDPP) or a person holding an appointment of Crown Prosecutor or a person authorised by or under a law of Victoria to institute or conduct prosecutions for offences against the laws of Victoria. Section 31(2) of the Commonwealth DPP Act states that a delegated function, when exercised by the delegate, shall be deemed to have been exercised by the CDPP.

1. Section 22(1)(cc) of the Public Prosecutions Act 1994 (Vic) in turn provides that if the VDPP, with the consent of the Attorney-General, holds an appointment, commission or authority to prosecute offences against the laws of the Commonwealth, the VDPP may institute, prepare and conduct proceedings in accordance with that appointment, commission or authority. Section 22(1B) states that the Attorney-General’s consent under s 21(1)(cc) may be general or specific in nature.

1. The Public Prosecutions Act 1994 (Vic) allows for the delegation of those powers by the VDPP. Section 36(1)(ba) gives a Crown Prosecutor the power to institute, prepare and conduct prosecutions for offences against laws of the Commonwealth where the Crown Prosecutor, with the consent of the VDPP, holds an appointment, commission or authority to prosecute offences against laws of the Commonwealth.

1. On 2 June 2011, the indictment was signed by Mark Rochford in his capacity as Crown Prosecutor. The indictment prefers five charges. Charges 1, 2 and 5 concerned s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Charges 3 and 4 concerned offences against the Criminal Code Act 1995 (Cth). On 6 June 2011, the indictment was filed before her Honour Judge Lewitan. The applicant was arraigned, pleaded guilty and admitted prior convictions.

1. The delegation of authority, written and made by the CDPP pursuant to s 31(1B) of the Commonwealth DPP Act, did not include Mr Rochford as a person authorised to sign the indictment. So far as charges 3 and 4 are concerned, therefore, the indictment, and consequent plea proceedings and sentences imposed, are a nullity by reason that a valid indictment had not been made.

1. The decision of the Full Court in R v Parker[2] makes clear that a valid indictment is an essential condition of putting a person on trial and that the authority to sign an indictment must exist on the day on which that indictment is filed.  The failure to sign with the proper authority is not a defect which can be cured.  See also R v Clarke and McDaid.[3] 

   [2][1977] VR 22.

   [3][2008] 2 Cr App R 2.

Conclusion

1. It falls to the Court to re-sentence the applicant on the remaining charges 1, 2 and 5.  The submission of both applicant and respondent is that the Court can and should re-impose the sentences imposed by the judge on those charges and we will adopt that course.  We note that the  non-parole period of 12 months has already been completed and the applicant has been released on parole.

1. We make the following orders:

1.The application for leave to appeal against conviction in relation to charges 3 and 4 is granted.

2.The appeal is treated as instituted and heard instanter and is allowed on both grounds.

3.In relation to each of charges 3 and 4, the conviction is set aside and the sentence quashed.

4.The appellant is sentenced on charges 1, 2 and 5 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
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
Section 6AAA Statement:		3 y, non-parole period of 2 y.

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