R v Satalich [2001] VSCA 106

R v Satalich [2001] VSCA 106 - VSCA 2001 case summary — Zoe

[41]

For my own part, I regard the distinction which the respondent seeks to draw as non-existent. If there are facts constituting a statutory aggravation of the offence which the jury must decide, the aggravating circumstance must be charged in the presentment if it is intended that the accused should be dealt with on the basis that he is guilty of that statutory aggravation. That has always been the position at law[5] and Mr. Coghlan concedes that where, pursuant to s.71(1)(a), the Crown wishes to allege that the accused has committed an offence of trafficking in a quantity of drugs not less than the applicable commercial quantity and be punished accordingly, it should allege that circumstance as part of the offence and prove it to the satisfaction of the jury. It could scarcely be otherwise where the section creating the offence stipulates that the accused is to be liable to a maximum term of 25 years' imprisonment "where the Court is satisfied beyond reasonable doubt that the offence [of trafficking] is committed in relation to a quantity of a drug ... that is not less than the commercial quantity". The stipulation that it is the court (meaning "the jury") which must be satisfied "beyond reasonable doubt" of the facts which aggravate the penalty makes it clear, to my mind, that the aggravating circumstance is an element of an aggravated offence of trafficking created by s.71(1)(a). Indeed, it seems to me to be consistent with the wording and framework of s.71(1) that it creates three distinct offences of which those created by sub-paragraphs (1)(a) and (1)(ab) are aggravated forms of the offence of trafficking simpliciter provided for in sub-paragraph (1)(b). The circumstances provided for in s.71(1)(a) and s.71(1)(ab) do more than increase the maximum penalty for the offence of "trafficking" in a manner relevant only to the exercise of the judge's sentencing discretion. Rather they are circumstances of aggravation which fall to be determined by the jury and, as such, become elements of an aggravated offence which must be specifically alleged in the presentment. This distinction was adverted to by Gibbs, C.J., Wilson and Dawson, JJ. in Kingswell (supra), which was a case involving the proper interpretation of ss. 233B(1) and 235(2) of the Customs Act 1901 (Cth.). Their Honours said (at. 280):

[53]

(See also Deane, J.[14].) Gibbs, C.J., Wilson and Dawson, JJ., took the view[15] that the statement of Lord Diplock was a salutary rule of construction, but one "which must yield to an expression of contrary intention". There can, I think, be little doubt that this view of Lord Diplock's statement in Courtie, supra, is correct[16]. However, it is the former method expressed by Lord Diplock which, as I see it, has been adopted by the Parliament in enacting s.71(1) of the Act and it was that method of creating separate offences of "trafficking" with separate elements which the Court recognized in Pantorno (supra). On the proper construction of s.71(1), it is difficult to find any contrary intention of the type which is to be found in s.233B and s.235 of the Customs Act. It does seem, however, that the employment by the Legislature of a scheme of creating different and escalating maximum penalties by describing in the one section different aggravating circumstances tends to produce uncertainties which will not occur if it resorts to the method of creating separate offences in separate sections, as the Crimes Act 1958 does with "robbery" and "armed robbery" (ss. 75, 75A) and "burglary" and "aggravated burglary" (ss. 76, 77). However, drug trafficking takes, or is capable of taking, so many forms that it is not uncommon for the Parliament to seek to cope with them by prescribing what appears to be a single genus of offending and then providing a number of circumstances in which the class of offence is committed, attended by different penalties depending upon the gravity of the circumstances[17]. Thus where, as here, the statute has, in the one sub-section, created the offence of trafficking and has then provided a range of circumstances in separate paragraphs, attended by a decreasing scale of penalties, which circumstances have to be proved beyond reasonable doubt to the satisfaction of the jury before the penalty provided is attracted, it seems to me to be consistent with fundamental principles of law that the Parliament is to be taken to have intended that a separate offence has been created for each of the circumstances so provided. As Brennan, J. noted in Kingswell[18]:

[74]

As I have said, there was no dispute in this appeal that the procedure adopted at trial was erroneous. The aggravating circumstance was not charged as an ingredient of the offence and, although the applicant was asked to plead separately to an "averment" that it existed, the jury was not asked to return a verdict to an offence which included it as an element. Instead the jury were asked to return a verdict on the simple offence of "trafficking" contrary to s.71(1)(b) of the Act. When the jury informed the judge that they could not agree upon an answer to the "question" about the existence of the circumstance, his Honour took from them a verdict upon the non-aggravated form of the offence and then embarked upon a consideration, for himself and as part of the exercise of his sentencing discretion, whether the circumstance of aggravation contained in s.71(1)(a) had been proved to his satisfaction notwithstanding the jury's lack of satisfaction about its existence. This procedure was, as counsel now agree, flawed in a number of respects. If, as I think, the circumstance described by s.71(1)(a) is an ingredient of an offence which is to be tried by the jury, then it should be alleged and proved to the satisfaction of the jury. To ask the jury whether it exists - not as part of the offence alleged, but as a separate question - is a novel form of procedure in a criminal trial[29]. Secondly, if the proper interpretation of s.71(1)(a) is that it is the jury who must determine whether the circumstance exists - as the Court in Pantorno (supra) correctly, in my opinion, decided - then the judge had no power to arrogate to himself the determination of the existence of that circumstance where the jury had been unable to agree. To do so was to usurp the function which s.71(1) committed to the jury.. If the circumstance had been pleaded as an ingredient of the offence charged, then the jury could, in appropriate circumstances and after appropriate directions, have returned a majority verdict in respect of the charged offence. But that opportunity was denied because the circumstance was not put forward as an ingredient of the offence charged. It is not open to this Court - as the learned judge thought it might be - to now say, because of the jury's intimation given to him, that the applicant has, by majority, been convicted of the aggravated offence of trafficking specified in s.71(1)(a) of the Act. No majority verdict of such an offence was taken. Indeed the only verdict taken was in respect of the offence described in sub-paragraph (b) of s.71(1). The procedure adopted was, thus, "neither fish, flesh nor fowl".

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Judgment (109 paragraphs)

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