Wilson v The Queen [2015] VSCA 211

CRIMINAL LAW - Sentence - Judge sentenced appellant in mistaken belief that maximum sentence for possession charge was 5 years' imprisonment - Applicable maximum sentence was in fact 12 months - Material error - Sentence of 4 months' imprisonment set aside - Appellant convicted and discharged.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 This is an appeal, pursuant to leave granted by Priest JA, against both conviction and sentence.

2 The appellant, now aged 31, was arraigned in the County Court at Warrnambool on an indictment containing one charge of armed robbery and one charge of possessing a drug of dependence. He pleaded not guilty to the charge of armed robbery, but guilty, in the presence of the jury, to the charge of possession of a drug of dependence. After a trial lasting four days, he was convicted of the charge of armed robbery.

3 In his preliminary remarks to the jury, the judge said this:

In this case it's alleged by the prosecution that the accused man, Mr Wilson, has committed two offences. You've heard he's pleaded guilty to one of those offences. He's pleaded not guilty to the charge of armed robbery and so it's for you and you alone to decide whether he is guilty or not guilty of that offence.

In this case there is only one charge that you are going to have to consider, the charge of armed robbery ... .

5 Nothing further was said about the elements of the charge of possession, or whether there was a need to take a verdict regarding that charge in order to 'clear the indictment'. The transcript makes it clear that no verdict was taken in respect of that charge.

6 Following a plea on 21 May 2014 and 20 June 2014 the appellant was sentenced on 8 August 2014 as follows:

Armed robbery [Crimes Act 1958 s 75A]

25 years [Crimes Act 1958 s 75A(2)]

Possession of a drug of dependence (OxyContin) [Drugs, Poisons and Controlled Substances Act 1981 s 73]

12 months or 30 penalty units [Drugs, Poisons and Controlled Substances Act 1981 s 73(b)]

7 The appellant was also sentenced on that date in respect of two summary offences, but as they are of no relevance to this appeal, nothing further need be said about them.

8 On 26 February 2015, Priest JA granted the appellant leave to appeal on the following ground:

1. The learned sentencing judge erred in failing to warn the jury about misusing the appellant's plea of guilty to the charge of possession of a drug of dependence.

9 Notwithstanding that restricted grant of leave, the appellant subsequently filed a revised notice of appeal, and written case, seeking leave to add a second ground of appeal. That proposed ground was in the following terms:

1. A substantial miscarriage of justice has occurred in circumstances where:

(a) reference was made to the appellant's use of a syringe to access a drug of dependence whilst in police custody;

(b) there could be no forensic advantage associated with the introduction of that reference; and

(c) the jury were not warned against misusing the evidence relating to the appellant's criminal conduct whilst in police custody.

10 Ground 2 was filed in response to a suggestion made by Priest JA, in his reasons for granting leave to appeal on ground 1. In those circumstances, there being no prejudice to the Crown, and the matter having been flagged by his Honour as an appropriate matter for consideration, we permitted the appellant, in the course of oral argument, to rely upon that ground.

11 In addition, Mr Dann, who appeared on behalf of the appellant, sought and was granted leave to add a fourth particular to ground 2. That particular reads as follows:

(d) the jury were not discharged following the final address of the appellant's counsel.

12 After the hearing had concluded, Mr Dann foreshadowed yet another ground of appeal against conviction. On this occasion, that ground was directed to the charge of possession of a drug of dependence, to which the appellant had, as we have said, pleaded guilty. The ground reads as follows:

1. A fundamental irregularity occurred with respect to the finding of guilt on the charge of possession of a drug of dependence and the conviction on that charge should be quashed.

13 Turning to the matter of sentence, there were originally two grounds in support of the application for leave to appeal. However, Priest JA granted leave in respect of ground 1 only. That ground is in the following terms:

1. The learned sentencing judge erred in proceeding on the basis that the applicable maximum penalty for the offence of possession of a drug of dependence was 5 years' imprisonment and/or 400 penalty units.

14 At about 6.00 pm, on 22 July 2013, a masked man entered the Amcal Pharmacy in Percy Street, Portland via the rear entrance. He was armed with a knife and his face was covered with what appears to have been a jumper, although there was some suggestion, in the trial, that it may have been a stocking. He walked through the dispensary section and confronted the pharmacist, Greg Anderson. He asked Mr Anderson where the 'S8' drugs were kept. Mr Anderson, in turn, asked him to put down the knife. He replied '[j]ust show me where they are'. Mr Anderson then pointed to a safe, and the offender told him to get the drugs out and that he wanted 'OxyContin'. Mr Anderson removed five packets of OxyContin tablets and handed them to the offender who then left via the rear entrance.

15 There was evidence that the appellant had, by that stage, been a regular customer of the pharmacy for a number of months, and had attended frequently throughout June and July of 2013. He had, on a number of occasions, purchased a variety of medications, generally painkillers, but never OxyContin.

16 Mr Anderson said that he recognised the appellant during the course of the robbery as the offender, primarily by his voice, but also by his build and height. Jessica Wilson, an employee, also recognised the appellant as the offender, but she only arrived at that conclusion after she had made her initial statement to the police.

17 The appellant was arrested on the following day, and taken to Portland Police Station. Whilst in the cells, he was found to be in possession of both a syringe and six OxyContin tablets which he had somehow managed, to that point, to conceal from the police. He was seen by police to be injecting himself with the OxyContin in solution.

18 From the very outset of the trial, counsel for the appellant foreshadowed the possibility of an application for severance of the charge of possession of a drug of dependence from the charge of armed robbery. The prosecutor indicated that he would oppose any such application. He made it clear that the prosecution case was that the OxyContin found in the possession of the appellant was part of the proceeds of the previous night's robbery.

19 The judge indicated that it would be difficult, in those circumstances, to make a persuasive case for severance. The Crown would be permitted to lead evidence of the finding of the OxyContin in any event, as circumstantial evidence in support of the charge of armed robbery.

20 Ultimately, no application for severance was pressed. The prosecutor said that, in those circumstances, he would not lead any evidence concerning the syringe or the use of the drug, it being sufficient for the Crown's purposes that the appellant was in possession of the OxyContin tablets.

21 The prosecutor was as good as his word. He led no evidence as to the syringe, or the appellant's having been found by police injecting himself with drugs after his arrest.

22 The central plank of the defence case regarding the charge of armed robbery was the obvious submission that the appellant was hardly likely to have chosen as the target of his offence a pharmacy at which he was a regular customer, and therefore likely to have been recognised.

23 Plainly, it was necessary to address the prosecution case that the OxyContin found in the appellant's possession could be linked to the OxyContin stolen from the pharmacy on the previous evening. The appellant did not give evidence at the trial. Nonetheless, and in order to rebut the inference for which the Crown contended, trial counsel, in his closing address, asserted from the Bar table, and without any evidence to support it, that his client had health issues, and needed medication to deal with pain. He suggested that the OxyContin found in the appellant's possession could therefore have been obtained legitimately by script, or possibly even could have been purchased from people 'on the street'.

Obviously the accused man has managed to get some drugs, but what I'd be asking you, ladies and gentlemen of the jury, to be keeping in mind, that it's not just one option available to you. It is not just a nice recognition of someone on the street and it's all over; it is a complex situation which the accused has, as you can gather from the evidence in the court.

And whilst the Crown would like it to be just a simple position of 'There's the armed robbery, they've taken OxyContin tablets, five packets of them', and subsequently they have found at the accused man's house OxyContin tablets. But you can deduce from the silence of the prosecution that there weren't five boxes of OxyContin in that house, otherwise they'd be here. And what he has is something like six OxyContin tablets. And he was seated in the house while the search was going on.

They managed to take a copy of a prescription, not relevant for these purposes. There were other medications there, but obviously not OxyContin.

So one of the options is that the person who robbed the Amcal chemist in Portland was a person who was after drugs and not just one packet, but obviously five packets, 28 pills each. The accused man was using a syringe to access the OxyContin medication he had after he was arrested.

So there's two possibilities at the very least, one is that the person who did the Amcal Portland armed robbery was the accused. The second option is that someone else other than the accused, was the person who did the armed robbery and that's what makes it so stupid doesn't it? If it was the accused man, why would he go to that chemist where everyone knows him? It doesn't make sense.[1]

26 Against the background of the central plank of the defence case, counsel's reference to '[t]he accused man using a syringe to access the OxyContin medication he had after he was arrested' not only made no forensic sense but, as will be seen, was the product of a misunderstanding of the evidence that had been led.

27 This emerges from the transcript. Immediately following trial counsel's closing address, the prosecutor indicated that he was concerned about what had been said to the jury regarding the matter of the syringe and the use of the drugs:

PROSECUTOR: My friend - and this was obviously a slip - he said that that OxyContin was found at the house and then he makes the point that there was none found at the house. He also made another comment to the jury that the accused man was accessing OxyContin via a syringe in the cells. Now I know where that's ...

HIS HONOUR: I thought he said syringe at the police station but whatever

PROSECUTOR: Yes. Anyway I know where that's come from.

HIS HONOUR: Yes.

PROSECUTOR: But it's not part of the evidence.

HIS HONOUR: No, well, it wasn't led, quite properly, by the prosecution.

PROSECUTOR: Yes, but it's been mentioned [by trial counsel].

TRIAL COUNSEL: It was mentioned during the trial, wasn't it?

PROSECUTOR: No.

HIS HONOUR: No, it wasn't. No it was ...

PROSECUTOR: No.

HIS HONOUR: The way the matter was opened to the jury was to simply say that when Mr Wilson was searched by the police, he was found in possession of OxyContin and that it was concealed within the band of his pants.

PROSECUTOR: Correct.

HIS HONOUR: That's the way it was put. And there was no mention of the discovery of him injecting the substances in the cells by way of syringe.

PROSECUTOR: No.

HIS HONOUR: So there's absolutely - the jury must be quite perplexed by that comment because they won't have a clue where that's come from.

PROSECUTOR: No, and it's a comment that in the context of this case would attract some speculation, or may attract speculation, and certainly it's the first time they've ever heard of a syringe or drug use or drug dealing or anything of that nature. So putting those things in combination, a reference to drug dealing, reference to a syringe, not a good look. Anyway, I don't know what we can do about that, Your Honour.

28 After hearing from both the prosecutor and trial counsel as to what, if anything, should be done regarding the unfortunate reference to the syringe and the injection of the OxyContin, the judge said:

I'm concerned that if I tackle that - the jury will elevate it. I think the best way to treat this is to ignore it, for my charge to focus on what I think are the significant issues that you both identified and deal with in a way which really means - I hope the jury haven't attached too much weight to it. My highlighting it may mean it becomes even more significant than it should be.

29 Subsequently the judge, in his charge to the jury, directed them that they were to decide the case solely upon the evidence presented, that being the testimony of the witnesses and the exhibits that had been tendered. He added:

nothing else is evidence in this case, and as I have told you, that includes any comments that I may make or any comments that have been made by the barristers.

30 In other words, his Honour said nothing that was directed specifically towards trial counsel's unfortunate, and almost inexplicable, reference to the appellant's having used a syringe to inject himself with drugs after his arrest. No exceptions were taken to his Honour's charge.

31 The appellant initially submitted, in his written case, that as a consequence of his having pleaded guilty to possession of a drug of dependence in the presence of the jury, the trial judge had been required to give a strong warning about any possible misuse of that plea.

32 More specifically, the appellant submitted that his Honour should have given an 'anti-propensity warning' regarding possible misuse of the plea.[2] That would have entailed a direction to the jury not to infer from the fact of the appellant's plea of guilty to the possession charge that he was the 'kind of person' likely to have committed the armed robbery.

33 It was originally submitted that such a warning was even more desirable given the reference by trial counsel, in his closing address, to the appellant's use of a syringe to inject himself with drugs. It was also originally submitted that, although no such direction had been sought, it was essential that it be given. More specifically, the failure to ask for such a direction could not have been the product of a rational forensic decision.

34 The first point to note regarding the way in which this case was originally put is that trial counsel's reference to the syringe, and the appellant's use of the drug, was obviously the result of an error on his part.

35 It is clear from the extracts of the transcript set out earlier that the prosecutor understood full well just how damaging trial counsel's carelessness had been to the defence case. Once the jury were apprised of the fact that the appellant had injected himself with OxyContin, after his arrest, the very prism through which the case could be seen had radically altered. The jury would then have been confronted, not with a man in possession of half a dozen OxyContin tablets, but rather a desperately addicted person who was prepared to 'shoot up' with that drug in the very precincts of a police station. In other words, the case shifted from one whereby the appellant might be viewed as a rational person in possession of a few OxyContin tablets, which might have been obtained lawfully, to one of a hopelessly addicted, and quite irrational drug user.

36 It was submitted that, as the prosecutor said, this piece of information had, at the very least, resulted in a bad 'look' so far as the appellant was concerned. In truth, it was more damaging than this. It entirely undercut his defence, which was that, acting rationally, he would hardly have been likely to have robbed that particular pharmacy. The point was that the reference to the use of the syringe made it clear that he was hardly likely, at the time, to have been acting rationally.

37 Initially, this was merely put as an additional basis upon which an anti-propensity warning should have been given. However, during the course of oral argument, Mr Dann recognised that his submission really had to go further and entailed a contention that, once trial counsel had mistakenly introduced the syringe and use of the drugs, no warning of any kind, no matter how strongly worded it might be, could have been sufficient to overcome the prejudice sustained by the appellant. His ultimate submission was that, in the particular circumstances of this case, nothing short of a discharge of the jury could have prevented a substantial miscarriage of justice.

38 The Crown noted, in its written submissions, that this trial had been conducted under the auspices of the Jury Directions Act 2013. Yet trial counsel had not, at any stage, sought an anti-propensity warning, still less a discharge of the jury.

39 In essence, the Crown submitted that it was significant that when arrested on the day after the robbery the appellant was found in possession of a number of OxyContin tablets, of the same strength as those that had been stolen on the previous evening. The Crown further submitted that, in these circumstances, the jury were well entitled to infer that these tablets were the proceeds of the previous day's robbery.

40 The Crown pointed to the fact that when the appellant was first spoken to by police and asked whether he had stolen packets of OxyContin on the previous evening, he said words to the effect: 'Not me. Why would I get them. I have them prescribed.' Yet when formally interviewed by the police and asked about his prescribed medication, although he identified a number of drugs that he was taking, he made no mention of OxyContin.

41 Exhibit C at the trial contained a record of prescriptions obtained from the Portland pharmacy. Yet there was no indication of the appellant having ever been prescribed OxyContin. How then, the prosecutor asked, had he come into possession of the tablets? And why was it that they were concealed in the band of his trousers at the time he was arrested?

42 The prosecutor also pointed to the fact that the tablets found in the appellant's possession were 30 milligrams in strength. That was consistent with the strength of the tablets stolen on the previous evening. It was submitted that this was no mere coincidence.[3]

43 Of course, the defence had to meet the prosecution argument that the six tablets were likely to have been the product of the previous day's robbery. It sought to do so by arguing that the evidence of the appellant having been found in possession of OxyContin was equivocal. As we have previously indicated, trial counsel sought to suggest that the appellant was a man whose health was such that he needed painkillers. He had a history of having used such drugs extensively, though not, it would seem, OxyContin. By referring to that history, it could be said that it would not be safe to conclude that the tablets found secreted in the appellant's clothing, at the police station, were in fact linked to the previous night's robbery.

44 It was against this background that the Crown submitted there had been no substantial miscarriage of justice. The Crown also submitted that it had a strong case due to the recognition evidence.

45 On any view, the Crown was entitled to lead the evidence of the finding of the OxyContin tablets in the possession of the appellant as part of its circumstantial case against him in relation to the charge of armed robbery.

46 The appellant, perfectly reasonably from his point of view, saw that he had no defence at all to the drug charge, and elected to plead guilty to that charge in the presence of the jury. That was a legitimate forensic choice, reasonably open to him.

47 The Crown at no stage sought to rely upon the charge of possession as tendency or coincidence evidence. The facts giving rise to that charge amounted to circumstantial evidence, directly admissible in support of the charge of armed robbery.

48 The judge gave the jury a clear, and with respect, impeccable direction regarding the process of inferential reasoning. Trial counsel devoted a significant part of his closing address to the appellant's state of health, and pain management issues. As we have said, it was necessary that he do so in order to meet the circumstantial case advanced by the Crown.

49 As Mr Dann properly acknowledged, the giving of an anti-propensity warning would very much have been a double edged sword so far as the appellant was concerned. The judge, correctly, was concerned to avoid elevating the significance of the possession charge into a suggestion that it might entail tendency reasoning, and therefore determined to say as little as possible about that matter.

50 Had nothing more occurred, there would have been no substance to this appeal. There was no realistic possibility, in our view, that merely by being aware of the appellant's possession of a handful of OxyContin tablets, the jury would have engaged in impermissible tendency reasoning, rather than legitimate inferential reasoning.

51 However, once trial counsel made mention of the appellant's use of a syringe to inject himself with OxyContin while in police custody, everything changed. This would not have been regarded as a mere passing comment. The appellant would then have been seen as an addict, desperately and irrationally seeking to feed his addiction, even while in police custody.

52 The sting in all this, so far as the appellant was concerned, was, as the appellant submitted, that almost the only plank of the defence case was undermined.

53 It goes without saying that an accused is ordinarily bound by the way in which his or her legal representative has conducted the trial. Whereas one can readily understand why, in the circumstances of this case, no request was made for an anti-propensity warning, it is more difficult, indeed almost impossible, to understand why there was no application for a discharge of the jury.

54 Reading between the lines, it seems that had such an application been made, the prosecutor, who conducted this trial with impeccable fairness, would have supported it. The transcript suggests that he was gravely concerned that, as a result of trial counsel's carelessness, the appellant may have suffered very real prejudice. We suspect that the trial judge too would have given serious consideration to discharging the jury had such an application been made.

55 We accept Mr Dann's submission, in its final form, that no direction could have cured the problem created by trial counsel's egregious error. For the judge to have instructed the jury to disregard the reference to the use of a syringe to inject OxyContin, would have served only to highlight that matter, and expose the appellant to still further prejudice. It would have been pointless to give an anti-propensity warning since the real danger here was not one of impermissible tendency reasoning, but rather of attaching significance to a piece of information that should never have been before the jury.

56 Counsel who appeared for the Crown before this Court sought, valiantly, to invoke what was formerly termed the proviso. This was undoubtedly a strong Crown case. Nonetheless, it cannot be said that it was so overwhelming that a conviction was inevitable, had the information regarding the use of the syringe not been placed before the jury. There were aspects of the recognition evidence that were troubling, and the appellant was entitled to have the full weight of his criticisms of that evidence properly considered.

57 Accordingly, the appeal against the conviction on the charge of armed robbery should be allowed. There must be a new trial on that charge.

The conviction for possession of a drug of dependence

58 On the first day of the trial, the judge was informed that the accused would plead guilty to the possession charge 'on arraignment in front of the jury'. The jury panel were subsequently brought into court, and the appellant arraigned. He pleaded not guilty to the charge of armed robbery, and guilty to the charge of possession. As previously indicated, no verdict was ever taken from the jury with regard to that second charge.

59 At common law, the position once was that after an accused had been arraigned in front of a jury, the presentment had to be 'cleared'. The only way by which that could be done was by having the jury bring in a verdict in relation to each charge on the presentment, or by discharging the jury from being required to do so.

60 In R v Hancock,[4] the appellant was charged with rape. Upon arraignment, he pleaded not guilty. However, at a later stage of the trial he admitted the truth of the allegation against him, and the jury were thereafter discharged. He was subsequently sentenced, without any verdict of the jury having ever been taken.

61 The Court of Criminal Appeal had no doubt whatsoever that the conviction should be set aside, the proceeding below having been a nullity. Lord Chief Justice Hewart (with whom Avory and Humphries JJ agreed) stated:

We have no doubt that, in such circumstances, a verdict of the jury ought to be taken.[5]

62 To the same effect was R v Paprounas.[6] There the appellant had been arraigned in the County Court, in Melbourne, on a presentment charging him with wounding with intent to do grievous bodily harm. Upon arraignment, he pleaded not guilty to that charge. The trial proceeded, but at some point the appellant indicated a desire to be re-arraigned, and to change his plea from not guilty to guilty. The appellant in the presence of the jury was then re-arraigned on the same presentment and pleaded guilty to the charge contained in it. The judge then told the jury that, so far as they were concerned, there was no verdict to enter, and he would discharge them. The judge then did so.

63 Accordingly, it was plain that the judge, in the presence of the jury, and before they had been discharged, accepted or purported to accept the appellant's plea of guilty upon his re-arraignment.

64 Notwithstanding the fact that he had pleaded guilty, the appellant sought leave to appeal against conviction. He relied upon the 'irregularity' consisting of the discharge of the jury without a verdict in the circumstances described above.

65 The Full Court (Winneke CJ, Smith and McInerney JJ) said:

Upon his original arraignment and plea of not guilty, the applicant had been placed in charge of the jury. It therefore became the tribunal to determine his guilt or innocence and so long as the applicant remained in its charge, only by its verdict could he be convicted or acquitted. As the jury were discharged without verdict, that result did not in fact occur. In consequence the trial of the applicant did not conclude according to law. On the contrary, instead of requiring the jury to return a verdict after having heard the applicant's admission of guilt involved in his plea of guilty, which was the course required by law and which is the course universally followed in practice in such circumstances, the learned judge himself purported to convict the applicant by accepting his plea and then discharged the jury and imposed sentence upon him. We agree the course followed involved a grave irregularity, and also involved that no conviction of the applicant valid in law was made, and as in the circumstances the learned trial judge had no power to convict, the conviction recorded by him cannot stand.[7]

66 It can therefore be seen that, at common law, the appellant's conviction in the present case on the charge of possession of a drug of dependence would, at the very least, be suspect.[8] However, the common law no longer governs this aspect of trial proceedings.

67 The procedural requirements governing pleas and verdicts of guilty are now set out in the Criminal Procedure Act 2009.

68 Section 210(1) provides that a trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with s 217.

69 Section 217 is headed 'Arraignment in presence of jury panel'. The section relevantly provides:

If an accused has not pleaded guilty to all of the charges on an indictment -

(a) the accused must be arraigned in the presence of the jury panel ...

70 Where an accused wishes to plead guilty to one or more charges in an indictment, and not guilty to others, the appropriate course will usually be to file two indictments, and arraign the accused separately on each of them. The arraignment in the presence of the jury will be confined to those charges to which the accused pleads not guilty. In that way, the jury is not made aware of the fact that the accused has pleaded guilty to other charges.

71 Section 215 deals with arraignments generally. It provides as follows:

(1) An accused is arraigned when the court -

(a) asks the accused whether the accused is the person named on the indictment; and

(b) reads out each charge on the indictment and asks the accused whether the accused pleads guilty or not guilty to the charge.

(2) An accused may be arraigned or re-arraigned at any time.

72 In this case, there is no doubt that the appellant was arraigned within the meaning of s 215, since he was asked, in relation to each charge on the indictment, whether he pleaded guilty or not guilty to that particular charge.

73 Section 241 deals with the circumstances in which a judge may discharge a jury from delivering a verdict, and instead enter a finding of guilty. The section relevantly provides:

(1) If, during trial, an accused is re-arraigned and pleads guilty to a charge on the indictment, the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of guilty be made on the record in respect of that charge.

...

(3) An entry of guilty under subsection (1) ... has the same effect as if it were the verdict of a jury on the trial of the accused on that charge.

74 Section 241 was obviously introduced to overcome the common law requirement that an accused, once in the charge of the jury, had to be dealt with by the jury in order to 'clear the presentment'. His or her willingness to plead guilty part-way through the trial could not overcome that requirement. However, the section has no application to the facts of this case. The appellant was only ever arraigned once, whereas the section is concerned with 're-arraignment'. In other words, it covers the situation of an accused who starts off pleading not guilty, but wishes to change his or her plea during the course of the trial. It does not cover the situation of an accused who pleads not guilty to one or more charges, but guilty to one or more others, all in relation to the one indictment.

75 Critically, however, s 253B sets out when a finding of guilty is taken to have occurred. That section provides as follows:

If -

(a) on arraignment, an accused enters a plea of guilty to a charge for an offence; or

(b) a jury delivers a verdict finding an accused guilty of an offence -

then at that moment the accused is found guilty of the offence unless the judge sets aside the plea or verdict.

76 Section 253B was introduced in 2010, at the same time as s 253A (which was enacted as a result of criticisms levelled at the archaic system of 'administering the allocutus'). [9] In our view, the effect of this section, giving the words their ordinary and natural meaning, is that once the appellant pleaded guilty to the charge of possession of a drug of dependence, he was at that moment 'found guilty' of the offence, and no verdict had to be taken from the jury regarding that matter.

77 Accordingly, the challenge to the validity of the conviction for possession of the drug must fail.

Sentence appeal regarding possession of a drug of dependence

78 The applicable maximum penalty for the charge of possession of a drug of dependence, in the particular circumstances of this case, was a term of 12 months' imprisonment, and a small fine. It was not, as the judge misapprehended, a term of 5 years' imprisonment. The Crown rightly conceded that this was a material error.

79 Since the appeal against conviction on the charge of armed robbery must succeed, and there must be a new trial on that charge, it is only necessary to consider what sentence is appropriate in respect of the charge of possession.

80 In our view, possession of a handful of OxyContin tablets, of uncertain origin,[10] cannot justify a term of four months' imprisonment.

81 We consider that on the charge of possession of a drug of dependence the appellant should be convicted and discharged.

[2] See R v ODG [No 2] [2000] NSWCCA 404; (2000) 50 NSWLR 433; Martin v Tasmania [2008] TASSC 66; Qualtieri v The Queen [2006] NSWCCA 95; R v Chan [2002] NSWCCA 217; R v Conway [2000] FCA 461; (2000) 98 FCR 204; Gipp v The Queen (1998) 194 CLR 106; R v ATM [2000] NSWCCA 475; FMT v The Queen [2011] VSCA 165. See also Judicial College of Victoria, Victorian Criminal Charge Book, [4.15.1], 53-8.

[3] It appears that OxyContin tablets come in many strengths, ranging from 5 milligrams to 120 milligrams. Plainly, the Crown relied upon the fact that these were 30 milligram tablets as suggesting that they were the proceeds of the previous evening's robbery.

[4] (1931) 23 Cr App R 16.

[6] [1970] VicRp 107; [1970] VR 865.

[7] Ibid 866. See also R v Hayes [1951] 1 KB 29; R v Nicholas [1921] VicLawRp 106; [1921] VLR 602; R v Broadbent [1964] VicRp 94; [1964] VR 733, 735-6; R v Ross (Unreported, New South Wales Court of Criminal Appeal, 20 April 1994); DPP v Collins [2004] VSCA 179; (2004) 10 VR 1, 10-13.

[8] The reason we have expressed the position in such qualified terms is because the Court of Appeal in England has, in R v Poole [2006] EWCA Crim 724; [2002] 2 Cr App R 13, determined that earlier cases such as R v Hancock (1931) 23 Cr App R 16 to which we referred above at [60] were wrongly decided, and should no longer be followed. Whether or not Poole correctly represents the common law is, in the light of relevant legislation in this State, academic.

[9] See DPP v Nguyen [2009] VSCA 147; (2009) 23 VR 66.

[10] Although the Crown sought to link the tablets to the previous night's robbery, it did so only as a piece of circumstantial evidence. In other words, the tablets could have been proceeds of the robbery. If we were to treat them as definitively having been part of the OxyContin stolen on the previous evening, that would be an aggravating circumstance, so far as the offence of possession is concerned. We would have to be satisfied of that fact beyond reasonable doubt. We are not satisfied to that level.