R v Chhom Nor [2005] VSCA 46

R v Chhom Nor [2005] VSCA 46 - VSCA 2005 case summary — Zoe

[30]

In Pearce, the presentment alleged two offences in respect of the one incident, namely, the appellant breaking into the victim's home and beating him and thereby inflicting serious injury. One offence was charged under s.33 and the other under s.110 of the Crimes Act 1900 (New South Wales).[15] The High Court dismissed the appellant's claim that the trial judge erred in refusing a stay of the proceeding on the ground that the appellant was thereby placed in double jeopardy and the indictment was, therefore, oppressive and an abuse of process. Upon being arraigned, the appellant pleaded guilty to a number of counts including the two in question and, so far as is relevant, was sentenced to the same term of imprisonment on each of the two counts to be served concurrently. The High Court concluded that, in the circumstances, no plea in bar was available and the proceedings did not constitute an abuse of process. But the majority went on to say that, given that identical sentences had been imposed on the two counts in question, each sentence must have contained a portion that punished the appellant for one and the same act, that is, inflicting grievous bodily harm on his victim. Thus, it was said by their Honours[16] that, prima facie, the appellant was doubly punished for the same act. The court also considered that, notwithstanding that the sentences were ordered to be served concurrently and that it could be said that the overall sentence was proportionate to the criminality of the appellant's conduct, the individual sentences were nevertheless flawed because they punished him twice for a single act. In the circumstances, the order of the Court of Appeal dismissing the application for leave to appeal against sentence was set aside[17] and the matter was remitted to that court to be dealt with consistently with their Honours' reasons. The dismissal of the appellant's application for leave to appeal against conviction was affirmed. It is relevant to note that, notwithstanding that all members of the High Court considered that the appellant was subject to double punishment, it was not suggested that a sentence could not be properly imposed on each of the two counts.

[32]

In that case the two offenders, a married couple, were involved in the manufacture and sale of amphetamines. They were charged, inter alia, with trafficking and possession of a drug of dependence contrary to ss.71 and 73 of the Act. In order to understand the decision and its relevance to this proceeding it is sufficient if only the case relating to the husband is analysed. Count 3 in the presentment alleged that he trafficked in amphetamines between 1 March and 7 August 2001. Count 9 contended that he was in possession of amphetamines on 7 August 2001 and count 4 claimed that, essentially between the same dates that are applicable to count 3, Langdon had in his possession substances and other items for the purpose of trafficking in a drug of dependence. He pleaded guilty to those counts and was convicted and sentenced. He then sought leave to appeal against conviction and sentence. In a comprehensive judgment, Gillard, A.J.A., with whom Batt and Eames, JJ.A. agreed, concluded that, in the circumstances, the sentence imposed on count 9 offended the rule against double punishment and should, therefore, be set aside. The relevant facts in that case were that, upon executing a search warrant, the police found at the offenders' premises accounting records consistent with the appellant trafficking in the drug, although he initially denied such conduct. Importantly, however, at the hearing of the plea in mitigation, counsel for the Crown conceded that if particulars of count 3 had been given by the Crown, the fact that the amphetamines were found in Langdon's possession would have been a matter relied upon to establish trafficking in accordance with s.73(2) of the Act.[19] Consequently, on the Crown case, the criminal act of unlawful possession of the drug by Langdon would, by reason of the operation of s.73(2) of the Act, provide prima facie evidence of his trafficking that drug. Thus, to punish him on count 3, for what was essentially an aggravated form of the offence of "possession", and then to punish him again on count 9 for possession simpliciter of that drug, would clearly constitute double punishment. That is essentially what Gillard, A.J.A. found and, as Batt, J.A. said in his reasons, "the possession of ... amphetamine was part of the trafficking, as prima facie evidence of trafficking if constituted by virtue of s.73(2) of the [Act] was not displaced". In those circumstances, the Court set aside the sentence on count 9.[20]

[37]

But, as Gillard, A.J.A. observed in Langdon[27], each case must be determined in accordance with its own circumstances. In my view, the circumstances here are materially different from those that prevailed in the cases to which I have just referred, including Langdon. Importantly, in the present case, the criminal act of unlawful "possession" was not put forward by the Crown as amounting to a statutory trafficking for the purpose of count 1. It clearly did not seek to take the benefit of the extended statutory definition of trafficking under s.70 of the Act. Moreover, not only did it not indicate that it would rely on s.73(2) of the Act but, as I understand Mr Gilbert, who appeared for the respondent in relation to the Commonwealth presentment, it is doubtful if the Crown could have invoked that provision, notwithstanding that the total amount of heroin that was found at the appellant's premises amounted to a "trafficable quantity" for the purpose of it. It seems that the appellant's girlfriend was on the premises when the heroin was found there so that, given her association with drug trafficking, the Crown might have had difficulty in establishing that the appellant was in possession of all, and, therefore, a trafficable quantity, of the heroin, thus depriving it of the benefit of s.73(2). In any event, it is clear enough that the Crown case on count 1 was not based on the appellant's criminal act of "possession". The Crown's submissions to his Honour and the sentencing remarks make it plain that its case on the trafficking count was almost essentially reliant on the evidence of the intercept telephone calls and police surveillance. I consider that, even if it is accepted that, as Mr Sheales submitted, at trial the Crown was likely to have pointed to the "possession" evidence as confirming what has been established by its primary evidence, it could not be said, as a matter of common sense, that the Crown case on the trafficking count relevantly relied on actual possession of heroin by the appellant. Moreover, unlike the situation where possession of heroin was said to constitute statutory trafficking, on the Crown case in relation to count 1, the heroin that was trafficked was obviously not "the same" heroin as that which was the subject of count 2. I also consider that it is irrelevant to my conclusion on this issue that, as counsel contended, count 1 is a "between dates" count and could be said to extend into the period covered by the possession count. As a matter of common sense the period of trafficking is quite separate from that which is relevant to the possession count.

[40]

The next matter that was pressed was the appellant's application for leave to add ground 4 to the sentencing grounds. As re-formulated in the course of argument, this proposed ground alleges that, in sentencing the appellant on count 1, his Honour did so essentially by expanding impermissibly the period of the offence charged by that count to one between July and 21 December 2001 based on the appellant's admissions made in the course of his cross-examination that he had trafficked over the course of this lengthier period. That his Honour sentenced the appellant on that basis, counsel submitted, is plain from his sentencing remarks. During the hearing the appellant gave evidence that was plainly intended to confirm his case that he had sound prospects of rehabilitation, and in particular that he was, and intended to continue to remain, drug-free. It is a relatively rare case when the offender gives sworn evidence during the hearing of the plea in mitigation that is being made on his or her behalf, no doubt partly due to the fact that, in doing so, the offender runs the risk that the Crown might elicit from him or her, in cross-examination, matters that are not favourable to the offender's case. And such a risk materialised here inasmuch as, as I have already noted, during his cross-examination by counsel for the Crown - no doubt directed at testing the reliability of the appellant's claim that his prospects of rehabilitation were sound and, more particularly, that he will remain drug-free - adduced evidence from him that he had trafficked heroin on his release on bail in July 2001 and had continued to do so until his arrest in January 2002. Mr Sheales explained that the appellant was not cautioned as to his rights against self-incrimination before being cross-examined in this manner. I note, however, that not only was no objection taken to that line of questioning by his counsel,[28] counsel later sought to take advantage of this admission by urging his Honour to take account of that fact and saying that "thankfully, the evidence has been frank". In his submission to the learned sentencing judge, the appellant's counsel contended that the admissions so made by the appellant amounted to some recognition of a desire on his part to achieve rehabilitation.

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Judgment (69 paragraphs)

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