Vitou v Director of Public Prosecutions (WA)
[2013] WASCA 49
VITOU -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2013] WASCA 49
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 49 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:83/2012 | 12 FEBRUARY 2013 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 26/02/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal granted Appeal allowed Drug trafficker declaration quashed | ||
| B | |||
| PDF Version |
| Parties: | SIMONE TERESE VITOU DIRECTOR OF PUBLIC PROSECUTIONS (WA) |
Catchwords: | Appeal Drug trafficker declaration Whether the requirements for the making of the declaration were satisfied Whether the declaration should be quashed |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1), s 32A |
Case References: | Yates v Local Government Standards Panel [2013] WASCA 8 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VITOU -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2013] WASCA 49 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 1338 of 2011
Catchwords:
Appeal - Drug trafficker declaration - Whether the requirements for the making of the declaration were satisfied - Whether the declaration should be quashed
(Page 2)
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1), s 32A
Result:
Extension of time to appeal granted
Appeal allowed
Drug trafficker declaration quashed
Category: B
Representation:
Counsel:
Appellant : Mr S D Freitag
Respondent : Mr R G Wilson
Solicitors:
Appellant : Shadgett Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Yates v Local Government Standards Panel [2013] WASCA 8
(Page 3)
1 BUSS JA: On 5 April 2012, Stevenson DCJ made a drug trafficker declaration in relation to the appellant, purportedly under s 32A(1)(a)(i) of the Misuse of Drugs Act 1981 (WA) (the Act).
2 The appellant has applied to this court for an extension of time to appeal against the making of the declaration.
3 The principles governing an application for an extension of time to appeal in civil proceedings are well-established. I referred to them in Yates v Local Government Standards Panel [2013] WASCA 8 [30].
4 In the present case, it is convenient to consider the merits of the proposed ground of appeal before deciding whether an extension of time should be granted and, if so, whether the appeal should be allowed.
The offences for which the appellant was convicted before the primary judge
5 On 5 April 2012, the appellant was convicted, on her pleas of guilty before the primary judge, on two counts in an indictment.
6 Count 1 alleged that on 7 June 2011, at Maddington, the appellant sold a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Act. Count 2 alleged that, on the same date and at the same place, the appellant sold a prohibited drug, namely diacetylmorphine (heroin) to another, contrary to s 6(1)(c) of the Act.
The making of the drug trafficker declaration
7 At the sentencing hearing before his Honour, the prosecutor made application for a drug trafficker declaration. It was not opposed by defence counsel. The following exchange occurred:
KRUEGAR, MR: … The only other thing that I don't think is canvassed in those submissions is the drug trafficker declaration which I'll ask your Honour to make.
There's an earlier conviction for a serious drug offence in September of 2004 and your Honour's recorded two further - sorry, two further convictions today. On that basis, I'll ask for a drug trafficker declaration to be made.
STEVENSON DCJ: Mr Shadgett, do you wish to be heard in relation to that application?
SHADGETT, MR: No, no, your Honour. I think that's again a natural consequence of this action (ts 25).
(Page 4)
8 The primary judge made the declaration sought by the prosecutor.
The proposed ground of appeal
9 The appellant relies on one proposed ground of appeal.
10 The ground alleges in essence that his Honour erred in making the drug trafficker declaration because the appellant did not satisfy the requirements in s 32A(1) of the Act for the making of such a declaration.
The respondent's concession
11 At the hearing of the appeal, counsel for the respondent conceded that the primary judge had erred, as alleged in the proposed ground of appeal, and that in consequence an extension of time to appeal should be granted and the appeal should be allowed. This concession was properly made.
The merits of the ground of appeal
12 Section 32A(1) of the Act provides:
If a person is convicted of -
(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -
(i) serious drug offences;
(ii) external serious drug offences; or
(iii) offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;
or
(b) a serious drug offence in respect of -
(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or
(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,
(Page 5)
- the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
13 Section 32A(3) of the Act defines, for the purposes of s 32A, the expressions 'external serious drug offence' and 'serious drug offence'. It is necessary to refer only to 'serious drug offence', which is defined to mean a crime under s 6(1), s 7(1), s 33(1)(a) or s 33(2)(a).
14 In the present case, each of counts 1 and 2 was a 'serious drug offence', as defined in s 32A(3), in that each of them was a crime under s 6(1).
15 Each of counts 1 and 2 was committed on 7 June 2011. As at that date, the appellant had only one prior conviction for a 'serious drug offence' during the period of 10 years ending on 7 June 2011. She had not been convicted of an 'external serious drug offence' during the relevant period.
16 Accordingly, s 32A(1)(a) did not apply to the appellant.
17 The quantity of the prohibited drug involved in each of counts 1 and 2 was as follows:
Count 1: 13.90 g of methylamphetamine;
Count 2: 13.94 g of heroin.
18 The minimum amount specified in Schedule VII of the Act, in relation to each of methylamphetamine and heroin, is 28 g.
19 The quantity of the prohibited drug the subject of each of counts 1 and 2 was therefore less than the minimum amount specified in Schedule VII.
20 Accordingly, s 32A(1)(b) did not apply to the appellant.
21 The proposed ground of appeal has been made out.
Conclusion
22 Despite the significant delay in the filing of the appeal notice, it is in the interests of justice that the appellant be granted an extension of time to
(Page 6)
- appeal. The appeal should be allowed and the drug trafficker declaration made by the primary judge in relation to the appellant should be quashed.
23 NEWNES JA: I agree with Buss JA.
24 MAZZA JA: I agree with Buss JA.