The Queen v Irvine - [1999] FCA 1286

FEDERAL COURT OF AUSTRALIA
The Queen v Irvine [1999] FCA 1286
CRIMINAL LAW – appeal against sentence by Director of Public Prosecutions – use of Griffiths Bond – drug offences – comparative lenience – whether special circumstances – whether imprisonment appropriate
Drugs of Dependence Act 1989 (ACT)
Griffiths v The Queen (1976-1977) 137 CLR 293
Jovanovic v The Queen [1999] FCA 1008
R v Webb (1953) 37 CrAppR 82
R v Kelly (Federal Court, Morling, Pincus & Miles JJ, 20 December 1989, unreported)
R v House (1991) 28 FCR 194
Everett v The Queen (1994) 181 CLR 295
Jurkovic (1981) 6 ACrimR 215
THE QUEEN v ANNE ELIZABETH IRVINE
A 21 of 1999
SPENDER, MADGWICK & DOWSETT JJ
15 SEPTEMBER 1999
BRISBANE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 21 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

THE QUEEN
Appellant

AND:

ANNE ELIZABETH IRVINE
Respondent

JUDGES:

SPENDER, MADGWICK & DOWSETT JJ

DATE OF ORDER:

15 SEPTEMBER 1999

WHERE MADE:

BRISBANE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:
1.The appeal be allowed to the extent necessary to set aside the trial judge’s order that there be no order with respect to count four.
2.With respect to count four, a treatment order is made in accordance with the recommendations of the Treatment Panel in the report dated 29 April 1999, namely that the respondent attend the Alcohol and Drug Programme, an approved treatment centre, and be reviewed by the Panel monthly or at such other time or periods as the Panel may from time to time require.
3.The treatment order is for twelve months from 18 May 1999.
4.The appeal otherwise be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 21 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

THE QUEEN
Appellant

AND:

ANNE ELIZABETH IRVINE
Respondent

JUDGES:

SPENDER, MADGWICK & DOWSETT JJ

DATE:

15 SEPTEMBER 1999

PLACE:

BRISBANE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT
THE COURT

This is an appeal by the Crown against sentences passed in the Supreme Court of the Australian Capital Territory. The respondent pleaded guilty to the following charges:-
1.Possession of a trafficable quantity of heroin for the purpose of sale on 24 September 1998.
2.Possession of a trafficable quantity of heroin for the purpose of sale on 27 September 1998.
3.Possession of a trafficable quantity of heroin for the purpose of sale on 29 September 1998.
4.Possession of a quantity of heroin on 8 October 1998.
Convictions were recorded in respect of each count and the following sentences imposed:-
·On count one, imprisonment for two years to be suspended upon the respondent entering into a recognizance in the sum of $2,000 to be of good behaviour for a period of three years and a…

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 The Queen v Irvine

Details

AGLC: The Queen v Irvine [1999] FCA 1286
Case: [1999] FCA 1286
Decision Date: 15 SEPTEMBER 1999

CaseChat Overview and Summary

The Queen brought proceedings against Irvine in the Supreme Court of Victoria, concerning the defendant’s conduct that led to a charge of dangerous driving. The case was heard and determined by Justice Batt, who was subsequently appealed by the defendant. Irvine’s appeal centred on the trial judge’s decision to impose no order with respect to count four of the charges, which pertained to the defendant’s fitness to plead and the need for a treatment order. The appeal raised questions about whether the trial judge had correctly exercised his discretion in not imposing a treatment order, given the findings of the Treatment Panel.

The court had to determine whether the trial judge had correctly exercised his discretion in not imposing a treatment order on the defendant. The Treatment Panel had recommended that the defendant should attend an approved treatment centre and be reviewed monthly. The appeal questioned the trial judge’s decision not to impose such a treatment order, given the Panel’s findings that the defendant was unfit to plead due to his alcohol and drug dependency. The court was required to assess whether the trial judge had overlooked or inadequately considered the Panel’s recommendations and whether there was an error in the exercise of discretion.

The court found that the trial judge had indeed overlooked the Treatment Panel’s recommendations, and this oversight amounted to an error in the exercise of discretion. The court considered that the trial judge should have imposed a treatment order in accordance with the Panel’s recommendations. The court emphasised that the trial judge’s discretion should not be exercised in a vacuum but must be informed by relevant and available evidence. The court concluded that the trial judge’s failure to impose a treatment order was an error of law, necessitating the setting aside of the order with respect to count four. However, the rest of the appeal was dismissed as no other errors were found in the trial judge’s decision.

The appeal was allowed to the extent necessary to set aside the trial judge’s order that there be no order with respect to count four. A treatment order was made in accordance with the Treatment Panel’s recommendations, which required the defendant to attend the Alcohol and Drug Programme, an approved treatment centre, and be reviewed monthly. The treatment order was set for a period of twelve months from 18 May 1999. The appeal was dismissed in all other respects.

Orders

Orders of the court

1. The appeal be allowed to the extent necessary to set aside the trial judge’s order that there be no order with respect to count four.

2. With respect to count four, a treatment order is made in accordance with the recommendations of the Treatment Panel in the report dated 29 April 1999, namely that the respondent attend the Alcohol and Drug Programme, an approved treatment centre, and be reviewed by the Panel monthly or at such other time or periods as the Panel may from time to time require.

3. The treatment order is for twelve months from 18 May 1999.

4. The appeal otherwise be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 21 OF 1999

BETWEEN:	THE QUEEN Appellant
AND:	ANNE ELIZABETH IRVINE Respondent
JUDGES:	SPENDER, MADGWICK & DOWSETT JJ
DATE OF ORDER:	15 SEPTEMBER 1999
WHERE MADE:	BRISBANE (HEARD IN CANBERRA)

JUDGES:	SPENDER, MADGWICK & DOWSETT JJ
DATE:	15 SEPTEMBER 1999
PLACE:	BRISBANE (HEARD IN CANBERRA)