R v Georgiou [2009] VSCA 57

CRIMINAL LAW - Conviction - Handling stolen goods - Whether trial judge gave adequate directions that Crown had to prove that goods were not stolen by the applicant - Leave refused.

CRIMINAL LAW - Sentence - Leave granted because of successful appeal against conviction on one count of possession - Appeal allowed - Applicant resentenced.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading the draft reasons of Robson AJA. I agree with his Honour that leave to appeal should be granted, and that the appeal against the conviction on count 3 should be allowed. I also agree that leave to appeal against conviction on the other counts should be refused, substantially for the reasons that Robson AJA gives. The application for leave to appeal against sentence should be granted, the appeal allowed and the applicant should be resentenced in the manner proposed by Robson AJA.

2 I wish only to make some brief remarks on grounds of appeal 3, 5 and 6. I note that the learned judge below gave counsel written material on the elements of the offences of trafficking and of possession of a drug of dependence, which she proposed to provide to the jury. Apart from some written amendments which her Honour accepted, defence counsel took no exception to the written material.

3 So far as the counts of possessing a drug of dependence are concerned, the judge below said that possession of a thing meant that a person had actual control over it, and had an intention to maintain that control. Her Honour explained that the effect of s 5 of the Drugs, Poisons and Controlled Substances Act 1981 was that any substance on land occupied by the accused was deemed to be in his possession unless he proved that he was not in possession of the drug on the balance of probabilities - 'that is to say that he does not have control of it with an intention to exercise control over it'. Her Honour then told the jury that if they were satisfied beyond reasonable doubt that the applicant occupied Room 423

you will conclude that the drugs ... were in his possession unless Mr Georgiou satisfies you that he did not have the capacity to exercise that control and did not intend to do so because someone else had access to the room and in all the circumstances there was not control that was exclusive to him, so he did not have possession. The defence position is that he did not have such practical control of the room because Mr Monetti was the sharer of it and because he could not have excluded people such as the hotel staff and others, therefore, you cannot draw an inference that he had that control.

4 There was no error in that direction. It is therefore unsurprising that defence counsel did not contend that her Honour was required to give more detailed directions as to the elements of the applicant's knowledge (or lack thereof) of the presence of the drugs in Room 423.

5 So far as s 73 was concerned, her Honour told the jury that its effect was that if they were satisfied that the accused had not less than six grams of methylamphetamine in his possession, that was prima facie evidence that he had trafficked in it. She went on to say that

the prosecution must still prove all the elements of the count including of course that the accused had occupation or practical control of the room. That is to say, that in the absence of evidence to the contrary, you could use the prima facie evidence of trafficking to establish his guilt provided you were on the whole of the evidence satisfied beyond reasonable doubt of that guilt.

6 While her Honour did not say at that point in her charge that it was necessary for the Crown to prove the accused knew of the presence of the drugs, I consider that her Honour did in substance instruct the jury that the Crown had to prove that the applicant knowingly had a trafficable quantity of drug in his possession.

7 Further, as Robson AJA has said, the question whether the accused knew the drugs were in the room was not put in issue by the defence case, which was that the accused was not an occupier of the room. Even if a matter is not raised by defence counsel, Pemble v The Queen[1] requires a trial judge to 'put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused'.

8 I do not consider that, in the circumstances of this case, her Honour was required to direct the jury on a matter that was never put in issue at the trial. As this Court said in R v Luhan,[2]

[t]hose who seek to challenge the result of a trial will be treated as bound by the manner in which the trial was conducted, and confined to the matters actually put in issue by them or by their counsel (except where a matter, [though] not raised, can reasonably be seen to have emerged as a real question from the evidence actually adduced at the trial).

9 The evidence raised a strong inference that the applicant was aware of the presence of the drugs in the room, including in the manhole. There was no evidence supporting the hypothesis that the drug was put there by someone else and that the applicant did not know of its presence.

10 Even if the applicant's denial that he occupied the hotel room, and his statement in his police interview that he was curious about what was in the man- hole, could be regarded as evidence that he did not know the drugs were in the manhole, I agree with Robson AJA that her Honour adequately directed the jury on the elements of the offence of trafficking.

11 I agree for the reasons given by Robson AJA, that leave to appeal against the conviction should be allowed and that the conviction on count 3 should be quashed. I further agree that for the reasons given by Robson AJA leave to appeal against conviction should otherwise be refused. The application for leave to appeal against sentence should be allowed for the reasons given by Robson AJA, and the applicant should be resentenced as his Honour proposes.

12 The applicant, Theodore Georgiou, seeks leave to appeal against the convictions and sentences imposed on him in the County Court of Victoria on one count of trafficking in a drug of dependence namely methylamphetamine, three counts of possession of a drug of dependence and one count of handling stolen goods.

13 For the following reasons, I would grant leave to appeal and allow the appeal against the conviction on count three being possession of a drug of dependence.

Otherwise I would refuse leave to appeal against conviction. I would also grant leave to appeal against the sentences imposed and allow the appeal.

14 On 5 August 2003, the applicant booked into room 423 of the Stamford Plaza Hotel located in Little Collins Street Melbourne. The room contained one double bed and the room was accessed by using a swipe card. The applicant paid for the room with cash and checked in under the name of Steve Galanos of 255 Maroubra Road, Maroubra without producing any identification. The departure date was recorded as 10 August 2003.

15 The following morning Prudence Roderick commenced work as the Assistant Front Office Manager at the hotel. She informed the applicant that photo identification was required to check in. The applicant stated that he had lost his wallet. He produced from his car a Clive Peeters store receipt in the name of Steve Galanos of Maroubra NSW. Ms Roderick advised the applicant that this was not an adequate form of identification. An associate of the applicant then produced identification in the name of Frank Minnetti, who was added as a second guest in room 423.

16 On 9 August 2003, at about 4.05pm, police arrested Abdul Elhajie in a laneway adjacent to the Stamford Plaza Hotel. At the time of arrest, police believed his name was Frank Minnetti. Police then requested that the hotel staff disable the swipe card enabling access to room 423. Later that day, the applicant was arrested at the door of the hotel room he was occupying. He was observed using his swipe card trying to gain access but he was unable to do so as it had been disabled. Police searched the room, finding drugs, a drug testing reagent, ammunition, goods suspected of being stolen and a number of other items. During the search, two plastic bags containing over 300 tablets containing methylamphetamine and ketamine, fell from a manhole in the ceiling above the kitchen. A third bag containing a tablet portion weighing 0.5 grams containing 4-methylenedioxy-N-methylamphetamine (MDMA) also fell from the ceiling. Elsewhere in the room two plastic bags were found containing traces of methylamphetamine and two plastic bags were found containing cannabis, the total weight being 19.4 grams. Some of these drugs were found in ziplock plastic bags, the same generic type as other plastic bags also found in the room.

17 The applicant was interviewed by the police and made a 'no comment' interview. The total weight of the methylamphetamine tablets was 101 grams. The ketamine made up fifteen per cent of the weight of the tablets.

Is the applicant being punished twice for trafficking and possession?

18 Although not expressly raised in the application for leave to appeal, the applicant contends the conviction on count three for possession of a drug of dependence, ketamine, should be quashed as he was being punished twice for possession of the drug. The ketamine concerned was part of the contents of the drug the subject of the trafficking charge in count one.

19 The Crown, however, does not concede that the conviction on count three should be quashed. The Crown says it is a matter for the Court. The Crown does concede that the applicant may have been convicted for two offences when he only committed one: the trafficking the subject of count one. The Crown concedes that the decision in R v Ahmed[3] may be authority for finding that the conviction on count three ought to be quashed. In my opinion, count three ought to be quashed. In R v Ahmed,[4] Buchanan and Nettle JA (Whelan AJA dissenting) held that under the Drugs, Poisons and Controlled Substances Act 1981, where a person is trafficking or in possession of a tablet that contains two or more drugs of dependence, the person may only be charged on one count relating to the tablet and may not be charged on more than one count in respect of each of the drugs of dependence contained in the tablet.

20 In his application for leave to appeal against conviction, the applicant initially relied on fourteen grounds. At the hearing, grounds one, twelve, thirteen and fourteen were abandoned. Ground four was not pressed during the hearing. I deal with the remaining nine grounds in the order in which they were addressed.

Deemed possession and prima facie evidence of trafficking

21 The applicant relies on three grounds under this heading.

Ground 3:

The learned trial judge erred by failing to give adequate directions as to the operation of s 5 and s 73(2) of the Drugs, Poisons and Controlled Substances Act 1981.

Ground 5:

The learned trial judge erred in her directions as to the elements of proof of possession of a drug of dependence in the context of the trial where the Crown relied on proof of possession of the drugs as prima facie evidence of trafficking.

Ground 6:

The learned trial judge erred in her directions as to the elements of proof of trafficking in the context of the sale where the Crown relied on proof of possession of the drugs for sale as proof of trafficking.

22 The applicant submits the trial judge erred by failing to give adequate directions to the jury on the issue of possession and trafficking. He contends that at the trial, the issue was raised that he did not know the drugs the subject of counts one, three and four were in the ceiling to room 423. The basis of the complaint under each of the three grounds relates to this alleged issue.

23 The Crown alleged that when the manhole cover in the kitchen ceiling was opened by the police in room 423, two sealed ziplock bags with tablets in them and a small black purse or ziplock bag fell to the kitchen floor. The two sealed ziplock bags contained the tablets the subject of counts one and three. The black purse contained an Ecstasy tablet the subject of count four. The Crown further alleged that in addition there was a small plastic bag on the kitchen floor before the cavity was opened. It had the residue of white powder in it, which was analysed and found to be traces of methylamphetamine. Another small plastic bag containing methylamphetamine was found on the dining room table. There was also cannabis found in a bag in the room safe and in a bowl on the kitchen cupboard.

24 The Crown relied, inter alia, on a combination of ss 5 and 73(2) of the Act to establish trafficking on count one and s 5 to establish possession on counts four and five. Section 5 provides:

Meaning of possession

Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

Possession of a drug of dependence

....

(2) Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.

25 The Crown case on the two counts of possessing drugs of dependence relied on the deemed possession of drugs by establishing the applicant was in occupation of room 423 where the drugs were found. On the count of trafficking drugs of dependence the Crown relied on the deeming provision provided by s 5 and then prima facie evidence of trafficking provided by s 73(2) as well as other evidence establishing trafficking. The applicant's grounds of appeal challenges the trial judge's directions where he alleges his knowledge of the existence of the drugs in room 423 was in issue.

26 The applicant contends that the trial judge erred by failing to give adequate directions as to the operation of s 5 of the Drugs, Poisons and Controlled Substances Act 1981. The applicant contends that the issue of whether he knew the drugs were in room 423 were raised at the trial and that the trial judge erred in not giving adequate directions on that issue.

27 In support of his contention that this issue was raised at the trial he contends that:

• the evidence more than one person rented the apartment;
• the evidence persons other than the applicant had access to the apartment;
• the evidence of the secretive location of the methylamphetamine tablets in the cavity above the ceiling;
• the absence of evidence as to when the tablets were placed, and who placed them, in the cavity above the ceiling;

the issues as to whether the applicant knew of the presence of, or intended to exercise control over, the tablets were reasonably open on the evidence. Accordingly, a direction to the jury as to proof of the element of knowledge was required. Intention to exercise control was required.

28 The applicant also submits the issue was raised on the evidence of Acting Sergeant Tulk. He said the applicant had stated in his formal interview that he believed the bag allegedly found on the kitchen floor had fallen out of the manhole during the search. Sergeant Tulk said:

I then asked him: 'And did you say you don't - you believe it wasn't there beforehand, how do you know that?'.

He replied: 'Because I was standing there sort of near the manhole part and I was looking inside there because I was curious to see what actually was up there myself.'

I said: 'OK.'

He went on to say: 'There was a lot of piping and stuff like that. There was a discussion - maybe someone actually climbing up there, so I wanted to have a look myself as well and I believe as these contents have fallen out of the manhole, this little bag must've fell out there - like - - -'

I said: 'OK.'

He continued on to say: 'Because there was nothing on the floor prior to that.'

I then asked him: 'Have we discovered any other evidence which confirms that, that drugs were in your possession at some time; is there any evidence on those drugs or in relation to those drugs to confirm that you were in possession of them at some time, in personal possession of it. Do you want to say anything about that?'

He answered: 'No, I'd just like to bring it up as an issue in relation to the dispute. Apart from that I have no other comment to make.'

29 The Crown disputes the issue was raised. Before examining this dispute it is convenient to consider section 5.

30 Section 5 provides that deemed possession may be rebutted where the defendant satisfies the court to the contrary. To overcome the effect of the deeming provision in s 5, the applicant was obliged to satisfy the jury on the balance of probabilities, that he was not in custody or control of the drugs or that he had no intention to exercise control over the drugs. In R v Hiep Tan Tran[5] Redlich JA, with whom Nettle and Neave JJA agreed, observed that the onus falls on the occupier of the premises to rebut the deemed possession of drugs on the premises. He explained:

A person proved to be in occupation of the premises is deemed to be in possession, as it is understood at common law, unless he proves that he was not in possession of the substance. The elements of common law possession are 'the corpus and the animus, the first consisting in a certain physical relationship between the propositus and the thing, the second consisting in a certain mental attitude on his part towards it.' Possession requires both physical dominion over the subject matter and an intent to exercise control. That is to say, for the person to be in possession, there must be physical control of the subject matter accompanied by the intention to exercise control. At common law, knowledge of the presence of the item by the occupier of the premises will generally provide the basis from which the necessary intent can be inferred.

If the jury were satisfied that the drugs were on premises occupied by the accused, the physical element of custody or control of the substance and the mental elements of knowledge and intent to possess or control the substance would be deemed to be satisfied as a consequence of s 5. To overcome the effect of the deeming provision in s 5, an occupier of a premises must satisfy the jury, on the balance of probabilities, that he or she was unaware that the drug was on the premises or had no intention to exercise control over the drug or the place where it was kept. (Citations omitted.)[6]

31 The applicant was represented at trial by counsel. His defence to the counts of trafficking and possession was as follows. He said the fundamental flaw in the Crown case was that other people had access to the room and the Crown could not exclude the possibility that one or more other people who had a connection with the room put the drugs there and the jury could not conclude the applicant had practical control of the room.

32 In particular, the applicant contended Mr Elhajie had access to the room. He said there was the opportunity for others to have access to the room, including the hotel cleaners. He said Mr Minnetti was the sharer of the room and occupied it for the same period as the applicant. He said Mr Minnetti had produced his ID to the hotel staff to rent the room and he had a car at the hotel. The applicant referred to his own observation when he was at the door where he stated: 'We can't get into our room.' He said he had not been seen at the hotel on the day of his arrest, nor was there any evidence of him being in the room that day. He said Steve Galanos who sought to rent the room exists and noted that his involvement in the room was not known.

33 All these matters were relied on by the applicant to meet the Crown case that he occupied the room. He argued that by reason of these matters the Crown had not established beyond reasonable doubt that he occupied the room and the deemed possession of the substances in the room might then be rebutted. Further, he relied on these matters to establish that he did not have possession of the relevant substances. He argued that he did not have control of the substances and therefore did not possess them.

34 The contention that the judge ought to have given a direction as to the accused's knowledge of the presence of the drugs in room 423 was not raised at the trial. The trial judge, in her charge to the jury, summarised the defence of the applicant and instructed the jury that his case was as follows:

Mr El Hajh and possibly others apart from the applicant had access to the room.

There had been the opportunity for others including the hotel cleaning staff to have access to the room.

Mr Minnetti was a sharer of the room.

The applicant was heard to say on his phone at the door of room 423 'We can't get into our room' or words to that effect.

Until the applicant was arrested at the door of the room, he had not been at the hotel that day.

There was no evidence of the applicant being in the room that day.

None of the hotel staff or the police were watching the door all the time.

The police only had the room under surveillance on 9 August.

Steve Galanos, had a connection with the room. Steve Galanos exists and was not called by the Crown.

The Crown case was fundamentally flawed as the jury could not dismiss the possibility that one or more of the people who had a connection with the room put the drugs there.

The jury could not exclude that Mr Minnetti or Mr Galanos put the drugs in the room and the jury could not conclude that the applicant had practical control of the room.

35 Counsel for the applicant was expressly asked by the trial judge whether he had any exception to the trial judge's charge and he had replied 'No'. At no stage during the trial did the applicant raise the defence to the statutory presumption given by s 5 of the Act that even if he was the occupier of the room, he was not aware the drugs were there and thus had no intention to control the drugs.

36 Counsel for the applicant's address to the jury did not directly raise the defence that the applicant was not aware the drugs were in room 423. Counsel identified the issue the jury had to be satisfied of, as whether the applicant was the occupier of room 423 and as such whether he had practical control of the premises.

37 He pointed to all the other people who were associated with the room and submitted the jury could not dismiss the possibility that one or other of them deposited or placed the drugs and other property in the hotel and had some dealing with them.

38 He concluded by asking whether the jury could exclude that the others were responsible for placing the items in the hotel room and submitted the jury would not be able to conclude that the applicant had control of the room.

39 Thus, counsel's defence was that because others may have put the drugs and other items in the room, the applicant did not have practical control of the room and was thus not the occupier. The issue of the applicant's awareness of the drugs was not mentioned. The defence went to solely to the legal definition of occupation.

40 The applicant contends the trial judge should have directed the jury to consider whether he had established on the balance of probabilities that he was not aware the drugs were in room 423, even though his counsel had not raised that defence. The trial judge, on several occasions during her charge, instructed the jury that if the accused established on the balance of probabilities that he did not have the capacity to exercise control over the drugs or have an intention to exercise that control, then the presumption in s 5 did not apply and the Crown would have failed to establish that the applicant had possession of the drugs.

41 The onus was on the accused under s 5 to establish that he was not in possession of the drugs found in room 423 on the balance of probabilities in order to rebut the presumption. As indicated above, however, the defence only argued that the Crown had not established beyond reasonable doubt what it had to prove, that is, that the applicant was the occupier of the room within the meaning of s 5 of the Act.

42 Generally, an applicant for leave to appeal can not rely on criticism not taken below. In R v Smart,[7] the Full Court of the Supreme Court of Victoria, comprising Young CJ and McInerney and Gobbo JJ, said:

Speaking generally, an applicant for leave to appeal against conviction is not allowed to rely in this Court on a criticism of the judge's charge which has not been taken by way of exception at the trial...[8]

43 This general principle was cited with approval by the Full Court in R v Clarke and Johnstone[9] per Crockett, McGarvie and Southwell JJ and also by the Court of Appeal in R v Hiep Tan Tran.[10]

44 Contrary to the submissions of the applicant, I do not consider the issue of whether the applicant knew the drugs were in room 423 was raised by the defence. He should not be permitted to now raise it. Assuming, however, it was raised, in my opinion, the trial judge did properly direct the jury as to the statutory defence to the presumption of possession under s 5 and the 'case did not call for greater elaboration or direction than which was given and to which no exception was or could be taken'.[11]

45 On the trafficking count, the applicant contends the Crown had to establish beyond reasonable doubt the accused knew that the drugs were in room 423 even where the Crown relied on s 5 and s 73(2) of the Act to establish trafficking. The applicant contends subsection 73(2) only gives rise to prima facie evidence of trafficking where possession of not less than the trafficable quantity is established. The applicant contends the trial judge erred in failing to give the jury a separate direction that the onus was on the Crown, even if the applicant was in possession of an amount that was prima facie evidence of trafficking, that he knew the drugs were in the room to establish trafficking.

46 In support of his contention the applicant cites from the judgment of Callaway JA in R v Tragear where he said: '... the onus [was] on the Crown, even if [the Applicant] was in possession of an amount that was prima facie evidence of trafficking, to prove that he did know it was [cannabis].'[12]

47 In R v Hiep Tan Tran,[13] Redlich JA, with whom Nettle and Neave JJA agreed, examined the meaning of the expression 'prima facie evidence' as used in s 73(2) of the Drugs, Poisons and Controlled Substances Act 1981. In relation to that, his Honour said as follows:

Ground 2 is in these terms:

The learned trial judge misdirected the jury as to the effect of s 73(2) of the Drugs, Poisons and Controlled Substances Act 1981 and in particular as to the meaning of the term 'prima facie'.

Section 73(2) of the Act relevantly provides that where a person has possession of not less than the trafficable quantity of a drug of dependence,

The possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.

The learned trial judge directed the jury as to the meaning of the expression 'prima facie evidence' in these terms:

'If you have a significant quantity of a drug of dependence the inference is that you intend to sell it and the law says that having more than three grams of heroin powder in your possession is prima facie evidence that you have it there for the purpose of selling it - it is an example, if you like, of a common sense conclusion of which the words "prima facie evidence" is really a translation. Prima facie evidence is evidence which would be sufficient to convict a person in the absence of any evidence to the contrary. However, although uncontradicted prima facie evidence may be used by you to convict an accused person such as Mr Tran, you would only be entitled to do so if in fact the prima facie evidence, either by itself or in conjunction with other evidence, satisfies you beyond reasonable doubt of his guilt of trafficking by possessing for sale ... But if you have in your possession such a quantity that the only common sense conclusion is that you have it for commercial purposes, that is to sell it, and that is that you are knowingly moving it along a chain from its point of manufacture towards its ultimate consumer, then the law says that is prima facie evidence that you are trafficking in it and having it in your possession for sale is a step in that movement along the line.'

Complaint is made that the direction given did not adequately convey the correct meaning of the term and overstated its effect. I do not agree. The direction included a passage which was in its terms, almost identical to a passage approved by this Court in Stavropoulos v Zamouzaris. The direction made clear that it was for the jury to decide whether on the whole of the evidence they were satisfied beyond reasonable doubt that the applicant trafficked in the drug which he possessed. His Honour in fact directed the jury in the very terms which counsel for the applicant submitted were required.

It was further submitted, as it had been in Clarke and Johnstone, that the trial judge failed to distinguish the evidentiary effect of s 73(2) from that of s 5 and had not elaborated upon how the evidence may have overcome the effect of the prima facie evidence provision. Again I must point out that the issue in the trial was whether the applicant knew that the drugs were present in his bedside drawer. If the 'real issue' had been whether the person in possession had trafficked by having it in possession for sale, a more elaborate explanation of the evidentiary effect of s 73(2) may have been warranted. It is apparent from what I have already said that defence counsel was resistant to the development of secondary issues. His Honour was not asked to elaborate upon the concept of prima facie evidence and no exception was taken to his directions. Whilst the failure of counsel to object will not necessarily be fatal to the success of an application for leave to appeal, its significance is now well established. The circumstances of the present case did not call for any greater elaboration of the direction which was given and to which no exception was or could be taken. (Citations omitted.)[14]

48 The applicant, however, relies on the observations of Callaway JA in R v Tragear[15] (in which Ormiston JA and Batt JA concurred, although Ormiston JA dissented on a different issue) to establish that the judge should have directed the jury that the Crown was required to prove beyond reasonable doubt in relation to trafficking that the accused knew the drugs were in the room. Callaway JA said:

Accordingly, at the new trial, to use s 5 in relation to counts 1 and 2, the Crown will have to prove beyond reasonable doubt that the cocaine in the knapsack was controlled by the applicant but, if that burden is discharged, the applicant will have to prove on the balance of probabilities that in fact he did not possess that cocaine. If possession of not less than the trafficable quantity is so established, such possession in that quantity is prima facie evidence of trafficking in accordance with s 73(2). The difference between the proof of possession under s 5 and the prima facie evidence of trafficking under s 73(2) was explained by the Full Court in R v Clarke and Johnstone. Immediately before that passage in their Honours' judgment they expressly said that the Crown may rely on both ss 5 and 73(2).

I turn to the second matter that has a bearing on the new trial. It may be assumed that the applicant will again say that he did not know that the cocaine was in the knapsack and did not know that the cocaine was in the chest of drawers and accordingly that he did not possess the cocaine on either occasion. In that case, even if the Crown successfully invokes s 5 in relation to counts 1 and 2 to establish possession, it will still have to prove beyond reasonable doubt that the applicant knew of the cocaine in the knapsack in order to secure a conviction on count 1. Otherwise he would lack the requisite mens rea, of which s 73(2) is only prima facie evidence.

It is particularly important in a case like this that the jury be clearly instructed on that last point so that, in relation to count 1, they do not confuse -

(a) the onus on the applicant to prove that he did not know of the cocaine in order to prove that he was not in possession;

with -

(b) the onus on the Crown, even if he was in possession of an amount that is prima facie evidence of trafficking, to prove that he did know that it was cocaine. (Citations omitted.) [16]

49 Count 1 in this case related to an incident where the accused was observed pulling up in a car outside a tanning studio he owned in Williamstown. He was observed leaving the tanning studio in possession of a knapsack. He took it to his car and got in. He was approached by a woman who he spoke to. Then the policeman who had been keeping the tanning studio under surveillance approached the car and asked the accused to get out. He did so, and the policeman searched the car and located the knapsack. In the knapsack, the policeman found a green cloth drawstring bag, inside of which was a clear plastic bag, sealed and containing a white powder later found to be cocaine. The accused gave evidence at his trial that he did not know the cocaine was in the knapsack and that the knapsack belonged to Summa Johnston, a woman who he shared his house with. Count two was an alternative count of possession of the cocaine.

50 Callaway JA relied on R v Clarke and Johnstone[17] and the explanation given by the Full Court of the difference between proof of possession under s 5 of the Drugs, Poisons and Controlled Substances Act and the possession of a drug of dependence in a quantity that is not less than a trafficable quantity being treated as prima facie evidence of trafficking under s 73(2) of the Drugs, Poisons and Controlled Substances Act 1981. In R v Clarke and Johnstone,[18] the Full Court of the Supreme Court of Victoria held s 5 could be used to establish possession for the purposes of s 73(2). The Full Court said:

If the jury were satisfied that the cannabis was on land occupied by the applicant and were not satisfied that he was not in possession of it, he was to be treated as having it in his possession.

Then it was open to the prosecution to rely on s 73(2), the terms of which have already been set out.

In s 70(1) there appears the following interpretation clause:-

'Traffick' in relation to a drug of dependence includes -

(a) prepare a drug of dependence for trafficking;

(b) manufacture a drug of dependence; or

(c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence.'

The effect of s 73(2) is that possession of a traffickable quantity of a drug of dependence is prima facie evidence of trafficking. Section 73(2) is not in our opinion to be read as providing that possession of a traffickable quantity of a drug of dependence is prima facie evidence of trafficking in all the ways in which one may traffick within the common law meaning of that word or the meanings given by the interpretation clause. We consider that upon a proper construction, possession is prima facie evidence of trafficking in the way or ways which are consistent with evidence in the case. For example, in a case where all the evidence showed that the person in possession had not manufactured the drug, the possession would not be prima facie evidence of trafficking in that way.

In this case, if, as a result of the application of s 5, the jury were satisfied that the applicant was in possession of the growing cannabis plants that would be prima facie evidence of trafficking by having the cannabis in possession for sale. There was evidence indicating that cannabis had been cut and placed in bags in the hayshed. It was conceded by Mr Faris that that was some evidence of trafficking in cannabis in the common law sense, by moving it from its source towards the ultimate user in the course of trade. If the jury were satisfied that the applicant was in possession of that cut cannabis that would be prima facie evidence of trafficking in the common law sense.

Mr Faris submitted that the Judge failed to explain to the jury the meaning of 'prima facie evidence' in s 73(2), had failed to distinguish the evidentiary effect of that sub-section from that of s 5 and had failed to tell the jury what the applicant could do to overcome the effect of the prima facie evidence provision.

There is a distinct difference in operation between ss 5 and 73(2). The former section operates so that facts establishing less than the possession of a drug by an accused are deemed to establish possession unless the accused satisfies the jury on the balance of probabilities that he was not in possession of it. The latter sub-section operates so that if the accused has in his possession a traffickable quantity of drugs that is prima facie evidence of trafficking by the accused. However, it does not deem any fact to exist nor reverse an onus of proof. If further evidence is placed before the jury on the issue of trafficking the jury decides on the whole of the evidence whether they are satisfied that the accused trafficked in the drug.

If there had been an issue whether whoever had possession of the cannabis in this case had trafficked by having it in possession for sale, it would have been necessary to explain precisely what was the evidentiary effect of s 73(2). However, it was common ground at the trial that with such a large quantity of cannabis, whoever possessed it was obviously growing it for sale. The Judge told the jury that. In the circumstances of this trial, to explain the evidentiary effect of s 73(2) where no evidence suggested that the cannabis was possessed other than for sale, and it was common ground that it was so possessed, would have been to load the jury with unnecessary information. It was neither necessary nor desirable for the Judge to do so. (Citations omitted.)[19]

51 Accordingly, even using s 5 and s 73(2), to establish trafficking beyond reasonable doubt, the Crown would be required to establish the elements of the trafficking alleged such as the accused possessed the drug for sale and the necessary mens rea or intent to do so.[20] The degree of instruction on these issues will however depend on the real issues in the trial.[21]

52 What did the trial judge direct the jury on these issues? The trial judge gave the jurors two pages of written instructions on the count of trafficking, one page on handling stolen goods and one page on possession of a drug of dependence. Unfortunately these pages were not tendered on the appeal.

53 As to trafficking she said the Crown must prove the following elements: that the accused trafficked in a substance and that the substance was a drug of dependence. She said the Crown had established the drug was a drug of dependence. As to the element of trafficking, she said that 'to traffic in a drug is defined to be knowingly concerned in its commercial movement and distribution from its manufacture to its ultimate consumer'.

54 She explained to the jury that the ordinary definition of trafficking is extended by the Act. She said the Act 'provides that traffick in relation to a drug of dependence includes sell, exchange, agree to sell, offer for sale or have in possession for sale a drug of dependence'. She instructed the jury that to establish the drugs were in the applicant's possession for sale, the Crown relied on there being a trafficable quantity in the room. She further instructed the jury that to establish the defendant was trafficking in the drugs in his possession, the Crown also relied on the various plastic bags including those containing remnants of methylamphetamine as well as the three shotgun cartridges and the bottle of reagent that were found in the room. She also instructed the jury on the prima facie evidence of trafficking provided by s 73 of the Act.

55 It can be seen therefore that in substance she instructed the jury that the Crown had to prove that the applicant knowingly had in his possession for sale a trafficable quantity of drugs.

56 In R v Tragear[22], Callaway JA said that in the case before him, even if the accused was in possession and of an amount that is prima facie evidence of trafficking, the onus was on the Crown to prove that the accused did know that it was cocaine. He was correct to say so. The jury must be satisfied beyond reasonable doubt that the accused intended to traffick. Whether the prima facie evidence provided by s 73(2) is sufficient to do so in the light of other evidence is a matter for the jury. In R v Tragear the accused had said he did not know that cocaine was in the knapsack. In order to convict the defendant of trafficking, the jury would need to consider that evidence along with the prima facie evidence provided by s 73(2) and be satisfied beyond reasonable doubt the accused did know of the existence of the drug.

57 As indicated above, the applicant did not suggest that if he was in possession of an amount of drugs of dependence sufficient to give rise to prima facie evidence of trafficking, he did not know what the drugs were or that they were in room 423 or that he did not intend to sell them. As indicated above, the applicant had not sought to rebut deemed possession under s 5 on the ground he had no intent to control the drugs but rather relied on lack of practical control of the premises.

58 The fact that the substances were in tablet form and there was a large quantity of them, the presence of the shotgun shells and the plastic bags to store the tablets in, along with the prima facie evidence, were all matters the jury could rely upon to satisfy themselves beyond reasonable doubt that the applicant was intending to traffick in the drugs he was in possession of. The trial judge expressly instructed the jury that the Crown relied on these matters to prove that the applicant was knowingly trafficking the drugs found in his possession.

59 The applicant suggests there is tension between R v Tragear and R v Hiep Tan Tran.[23] In Tran's case, the prima facie evidence was of such a large quantity that the only commonsense conclusion was that the accused had it for commercial purposes. There was no issue that if he did have possession of it that he did not know what it was. In R v Tragear that was the very issue. Although, the accused may have failed to rebut the deemed possession, the onus still rested on the Crown to establish beyond reasonable doubt that he was trafficking and thus knew the cocaine was in his possession and meet the defence that he did not know the substance was cocaine. I do not see any tension between R v Tragear and R v Hiep Tan Tran.

60 As mentioned above, the only real issue in the case before the trial judge was whether the accused was in occupation of room 423 and therefore in control of the drugs. The issue of whether the accused knew the drugs were in the room was not raised. In the words of Redlich JA, it was not a 'real issue' arising from the evidence as distinct from a remote or artificial possibility. R v Hiep Tan Tran[24] fully canvasses the circumstances where the trial judge must give a direction on an issue, even if not sought by counsel. The decision holds that such an obligation only arises if that be a real issue plainly arising from the evidence as distinct from a remote or artificial possibility.[25]

61 Nevertheless, the trial judge did instruct the jury that the Crown had to establish the applicant was 'knowingly' involved in trafficking, being in this case that he had in his possession a trafficable quantity of drugs for sale. In my opinion, in view of the limited nature of the issues raised by the defence in the trial, the trial judge did not err by not giving any further direction on trafficking as contended. To use the words of Redlich JA in R v Tran:[26]

the circumstances of the present case did not call for any greater elaboration of the direction that was given and to which no exception was or could be taken.

62 The Crown in the alternative relies on the proviso pursuant to s 568(1) of the Crimes Act 1958. Sometimes it is possible for an appellate court to be satisfied that it can apply the proviso even though it has not seen or heard the witnesses. The nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant. This is often likely to be so where the Crown relies principally upon circumstantial evidence.[27] Thus, there may exist evidence that this court can act upon that points ineluctably to the offender's guilt of the offence charged. There are no credit issues or other sufficient 'natural limitations' which are relevant in assessing the consequences of the asserted irregularity which would deprive this court of the capacity to assess the strength of the case against the applicant and conclude, if it were necessary to do so, that there has been no substantial miscarriage.[28]

63 If contrary to the conclusion I have reached, the knowledge of the applicant was in issue, and the trial judge did not give an adequate direction on the issue, I do not consider that the failure to give such a direction resulted in any substantial miscarriage of justice as the evidence does not in my view engender a reasonable doubt as to the applicant's knowledge. My view of the strength of the Crown's case is further considered in dealing with ground 10.

64 For the above reasons, I reject grounds three, five and six.

The three shotgun cartridges found in room 423

Ground 2:

The learned trial judge erred by admitting into the trial, evidence of the finding of the three shotgun cartridges in the hotel room.

Ground 7:

The learned trial judge erred in her directions to the jury that the finding of the three shotgun cartridges in the hotel room was one of the indicia of trafficking.

65 It has been accepted in the Supreme Court of Victoria that firearms and ammunition are associated with drug trafficking: R v Biddlestone.[29] In R v Sultana,[30] Gleeson CJ (with whom Handley JA agreed) of the New South Wales Court of Appeal dealt with evidence of possession of weapons being led at trial concerning the supply of drugs. Gleeson CJ said:

Common sense indicates that supplying heroin on the street, as the appellant is alleged to have done, is a dangerous activity. A jury would be entitled to reason that possessing firearms, or imitation firearms, would be appropriate to the business of a street heroin dealer, and in considering whether the appellant was in that line of business, it was logically open to them to take into account the appellant's possession of such firearms. That line of reasoning would not depend upon evidence or inference that all, or even most, heroin dealers carry weapons. Nor would it depend upon the premise that possessing weapons tends to indicate that the possessor is a drug-dealer as distinct from a person in some other line of dangerous work. None of the items in question, standing alone, would point to the nature of the appellant's occupation. It is their combined effect, in conjunction with the other evidence in the case, that is important.[31]

66 In my view, the shells were relevant evidence upon which the jury, amongst other things, could form the view that the applicant was trafficking.

Ground 8:

The learned trial judge erred by failing to give the jury adequate directions as to the elements of handling stolen goods in the context of the trial where the Crown was required to prove the applicant received stolen goods otherwise than in the course of stealing.

Ground 9:

The learned trial judge erred in failing to direct the jury as to the doctrine of recent possession in the context of the trial where the Crown relied on recent possession to prove the applicant had dishonestly received stolen goods.

68 The sole way the applicant's counsel put this issue was that the trial judge did not make clear the requirement that the Crown establish that the relevant CDs were received otherwise than in the course of stealing.

69 The trial judge handed out written directions. No complaint was made about them, although the court was not shown the written directions.

70 The trial judge gave the following oral directions to the jury:

Once again, you can turn to those four pages and you will find handling stolen goods is on the third page.

In order to prove this crime, the Crown must prove beyond reasonable doubt the following elements of the crime. One, that the goods referred to or some or one of them, were stolen goods. The expression, 'stolen goods' is a wide one in this context and includes goods which have been stolen or otherwise unlawfully obtained. Two, that the accused received the stolen goods or part of them, otherwise than in the course of stealing. 'Received' means obtained possession of them in the sense that the accused either by himself, or jointly with others, acquired the capacity to control the goods and had an intention to exercise control over them. Three, that at the time the accused received the stolen goods, he knew or believed that they or part of them were stolen goods. A mere suspicion that they might be stolen, is not sufficient to satisfy this element of the offence. Nor is knowledge or belief acquired after the accused's receipt of the goods. What the Crown must prove is that at the time he received the goods, he believed they had been stolen or unlawfully obtained. Four, that the accused received the stolen goods dishonestly. Dishonestly in this context means that the accused knew he had no legal right to receive the goods.

71 She also said of the second element 'that the accused received the stolen goods or part of them otherwise than in the course of stealing'.

72 In referring to the address of Mr Albert for the Crown, she said: 'He reminded you of the evidence that the items were stolen, although not by [the applicant], there is no direct evidence of that'.

73 The applicant submits that the trial judge did not charge the jury that it was an element of the offence that the handling had to be otherwise than in the course of dealing. It was said that when she stated 'that the accused received the stolen goods or part of them, otherwise than in the course of stealing,' the jury may have misunderstood the qualifying words 'otherwise than in the course of stealing' as qualifying only the words 'part of them' and not 'stolen goods'. I note that no objection was taken on this ground at the hearing. The trial was not conducted on the basis that the applicant may have stolen the CDs or that the jury could not be satisfied as to this element of the offence.

74 In any event, after considering the whole of her oral direction, I consider the jury would not have been confused on this issue and that they would have understood that to find the applicant guilty of this offence they would have to be satisfied beyond reasonable doubt, inter alia, that the CDs were stolen and were not stolen by the applicant.

75 Ground nine in relation to the doctrine of recent possession was not pressed on the hearing of the appeal.

Ground 10:

The verdicts on the drug counts are unsafe and unsatisfactory as the Crown did not exclude the reasonable possibility another person:

(a) kept the drugs found in the manhole in the hotel room, and/or

(b) kept the other drugs and alleged trafficking paraphernalia found in the hotel room,

without the applicant's knowledge.

Ground 11:

The verdicts on the drug counts are unsafe and unsatisfactory as the Crown did not exclude the reasonable possibility the applicant may have known of the existence of:

(a) the drugs found in the manhole in the hotel room, and/or

(b) the other drugs and alleged trafficking paraphernalia found in the hotel room,

but did not intend to exercise control over them.

77 The applicant submits the verdicts on the drug counts were unsafe or unsatisfactory. He says that even if the jury concluded he was an occupier of the apartment, taking into account:

1. the evidence the applicant was not the sole occupier of the apartment;
2. the evidence others had access to the apartment;
3. the evidence of the secretive location of the methylamphetamine tablets in the ceiling;
4. the absence of evidence as to when the tablets were placed, and who placed them, in the ceiling;

the issue as to whether the applicant knew of the presence of or intended to exercise control over the tablets was left unresolved. He submits it was open on the evidence someone other than he placed the drugs in the ceiling cavity knowing the applicant had means of access but chancing he would not exercise his means of access before the other removed it, or, if the applicant exercised his means of access, he chose to leave it alone and say nothing about it. The applicant submits that accordingly, it was not open, upon all of the evidence, for the jury to be satisfied beyond reasonable doubt that he was guilty of trafficking the tablets.

78 The relevant principles to apply, in considering whether it is open on the evidence for a jury to convict, have been settled by the High Court of Australia in M v The Queen.[32]

In my opinion, when an appellate court is faced with an appeal against conviction in which no more appears than a conflict between evidence that is sufficient in law to support the conviction and evidence tending to show that the appellant is not guilty, that court has but one function to perform. That function is to determine whether a jury, acting reasonably and appreciating the burden and standard of proof, could have convicted on the evidence available to support the conviction. That is the question which, in my view, the Court of Criminal Appeal was bound to address and to answer in this case. (Citations omitted.)[33]

80 Mason CJ, Deane, Dawson and Toohey JJ said as follows:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

....

It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above. (Citations omitted.)[34]

81 In R v Tiburcy[35] Nettle JA, with whom Vincent and Neave JJA agreed, summarised the test for an unsafe or unsatisfactory verdict as follows:

When this Court is asked to conclude that a verdict is unsafe or unsatisfactory, we are obliged to ask whether we think that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In doing so, we must, of course, pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and to the fact that the jury has had the benefit of having seen and heard the witnesses. But, if we experience a doubt as to the guilt of the accused, it should ordinarily be treated as a doubt which the jury ought also to have experienced. If, on the other hand, a jury's advantage in seeing and hearing the evidence is capable of resolving the doubt, we may conclude that no miscarriage of justice occurred. It follows, in effect, that the function of this Court is to determine whether the jury, acting reasonably, and appreciating the burden and standard of proof, could have convicted the applicant on the evidence available to support the conviction. (Citations omitted.)[36]

82 More recently, the Court of Appeal in R v Vjestica[37] has analysed the relevant authorities and said the question may be expressed as whether there was a solid obstacle to reaching a conclusion beyond reasonable doubt or whether, instead the path to a conviction was open. Maxwell P (with whom Buchanan JA and Whelan AJA agreed) said:

Since the High Court's 1994 decision in M v The Queen, the approach required of appellate courts in considering the 'unsafe and unsatisfactory' ground has been clear. The analysis involves the following steps:

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

In MFA v The Queen, McHugh, Gummow and Kirby JJ drew a distinction between the test as enunciated in M v The Queen and the test formulated by Dawson J in Chidiac v The Queen, a case decided three years before M v The Queen. The latter formulation was in these terms:

If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory.

Their Honours described this as a 'stronger or more stringent test' than the test in M v The Queen and in Jones v The Queen, which the appeal court in MFA v The Queen had expressed as follows:

I am of the opinion that it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the applicant.

With great respect, I am unable to see that there is any difference between the two tests. In my view, a guilty verdict can only be said to have been 'reasonably open' to the jury if there was no aspect of the evidence which obliged - as distinct from entitled - the jury to come to a different conclusion. This accords with the view expressed recently by a majority of the High Court in Libke v The Queen. In that case, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the 'unsafe and unsatisfactory' ground of appeal:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

In other words, the question posed in M v The Queen, namely:

Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?

requires the court of criminal appeal to decide

whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt' or whether, instead, the 'path to a conviction was open'.

Again, to conclude that a guilty verdict was not reasonably open on the evidence is equivalent to saying that no reasonable jury could have returned that verdict on the evidence as presented in the trial. This was the approach of the South Australian Court of Criminal Appeal in R v Shueard, cited recently by that Court in Shah, as follows:

To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt. In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given. This Court must not usurp the functions of the jury. (Citations omitted.)[38]

83 In accordance with these authorities, I am obliged to ask whether I think that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. As indicated above, the applicant contends that the verdict was unsafe and unsatisfactory as the issue of whether he knew of the presence of or intended to exercise control over the drugs in the room was left unresolved. Those matters were not in issue at the trial. As mentioned above, the applicant's defence was solely based on him not being in occupation of room 423 or in control of the drugs.

84 The evidence did not contain discrepancies, display inadequacies, was not tainted or otherwise lack probative force, to use the words of the majority in M v The Queen.[39] There was significant evidence pointing to the applicant's occupancy of the room and the jury were entitled to find beyond reasonable doubt that he occupied the room and that he had not established he did not have control of the drugs. After taking into account the submissions put on the applicant's behalf and considering the evidence I do not experience a doubt as to the guilt of the accused.

86 The details of the counts and sentences on which the applicant appeals are:

Count 1 - traffick in a drug of dependence, namely methylamphetamine - four years' imprisonment;

Count 3 - possession of a drug of dependence, namely ketamine

Count 4 - possession of a drug of dependence, namely

Count 5 - possession of a drug of dependence, namely cannabis L

Count 8 - handling stolen goods, being thirty-two DVDs, knowing or

The sentencing judge declared that two months of the sentence imposed on count three and one month of the sentences imposed on counts four, five and eight were to be served cumulatively upon each other and cumulatively upon the sentence imposed on count one. Accordingly, the total effective sentence imposed was four years and five months' imprisonment. A period of two years, three months' imprisonment was fixed before the applicant is eligible to be released on parole.

87 The grounds of appeal against sentence are as follows:

Each of the individual sentences imposed is manifestly excessive.

The learned trial judge erred in cumulating part of the sentence for possession of Ketamine on the sentence for the trafficking counts.

The total effective sentence of four years and five months is manifestly excessive.

The non-parole period of 18 months is manifestly excessive.

The learned sentencing judge erred by failing to properly take into account the significance of the elapse of time between the date of the applicant's arrest on 5 August 2003 and the date of his plea on 27 April 2007 during which the applicant:

(a) had not re-offended; and

(b) had successfully established and conducted businesses for the three years preceding the plea.

88 The applicant contends that the trial judge erred in cumulating part of the sentence for possession of ketamine on the sentence for the trafficking count. The Crown concedes that the ketamine the subject of count three was contained in the 308 tablets the subject of count one. As indicated above, the applicant was convicted on both counts one and three. He was sentenced to six months' imprisonment on count three and ordered to serve two months of that sentence cumulatively upon the sentence imposed on count one.

89 The Crown concedes that in the circumstances there should be no cumulation of count three on count one. The Crown concedes it would be unfair to add further punishment for the possession of a substance that is part of the drug for which the sentence on count one was imposed.

90 The Crown also concedes that such a finding reopens the whole sentencing on counts one, three, four, five and eight. In any event, I would allow the appeal against conviction on count three as indicated above.

91 The applicant was thirty-two years of age at the time of sentencing and had a substantial criminal history. A considerable number of convictions were recorded before he was twenty-three years old. These included three counts of armed robbery for which, with some other charges, he was sentenced to three and a half years' imprisonment with a minimum period of eighteen months before he was eligible for parole. There were a number of less serious dishonesty and drug possession charges. In 2001 he was convicted of three counts of trafficking in a drug of dependence and, along with other charges, he was sentenced to an aggregate term of imprisonment of eighteen months with a minimum period of twelve months to be served before being eligible for parole.

92 I consider the four years imposed for trafficking was within the usual range and was an appropriate sentence in the circumstances where the applicant pleaded not guilty and in view of his prior convictions for drug trafficking. I would impose a sentence of four years on count one. I would impose a sentence of three months' imprisonment on each of counts four and five. Again, I believe that it was an appropriate and proper sentence to reflect the criminality of the actions, bearing in mind the maximum sentence and the plea of not guilty and the prior convictions of the applicant. On count eight, handling stolen goods, I would impose a sentence of three months' imprisonment.

93 I would direct that one month of the handling stolen goods sentence on count eight be served cumulatively with count one. I would not cumulate any part of count four or count five as they appear to relate to the one episode of the possession and trafficking. Accordingly, the total effective sentence imposed would be four years and one month. I refer to and repeat the mitigating factors referred to by the trial judge. I agree with those. As the respondent submitted, the non parole period fixed by the sentencing judge was a merciful one. In the circumstances, I would fix the period of two years and one month's imprisonment before the applicant is eligible to be released on parole.

[1] [1971] HCA 20; (1971) 124 CLR 107, 118.

[2] [2009] VSCA 30, [37].

[3] [2007] VSCA 270; (2007) 17 VR 454.

[5] [2007] VSCA 19.

[7] [1983] VicRp 22; [1983] 1 VR 265.

[9] [1986] VicRp 64; [1986] VR 643.

[10] [2007] VSCA 19.

[11] R v Hiep Tan Tran [2007] VSCA 19 per Redlich JA (with whom Nettle and Neave JJA agreed) at [51].

[12] [2003] VSCA 222; (2003) 9 VR 107, [44].

[13] [2007] VSCA 19.

[15] [2003] VSCA 222; (2003) 9 VR 107.

[17] [1986] VicRp 64; [1986] VR 643.

[20] R v Luhan [2009] VSCA 30 per Maxwell P, Vincent and Neave JA, [19]-[28].

[22] [2003] VSCA 222; (2003) 9 VR 107.

[23] [2007] VSCA 19.

[26] [2007] VSCA 19, [51].

[27] R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, [112].

[28] R v KDY [2008] VSCA 104, [38]-[40].

[29] (Unreported, Supreme Court of Victoria, O'Bryan J, 18 May 1984 at 318- 319).

[30] (1994) 74 A Crim R 27.

[32] [1994] HCA 63; (1994) 181 CLR 487.

[35] [2007] VSCA 124.

[37] [2008] VSCA 47 (Maxwell P, with whom Buchanan JA and Whelan AJA agreed).

[39] [1994] HCA 63; (1981) 181 CLR 487.