R v Vang[2015] QSC 44

HER HONOUR:   This is a reopening of a sentence because, in the closing moments of the sentence hearing when I was beginning to deal with the issue of whether a serious drug certificate ought to be issued, after I had pronounced the sentences on the offences, the Prosecutor realised that there was an argument that section 5(2) of the Drugs Misuse Act applied to this offending and that, therefore, there was a mandatory term of imprisonment which the defendant had to serve on the trafficking offence. 

That having been raised, I adjourned the matter, saying that if I had neglected to have regard to section 5(2), and I ought to have, then I had imposed a sentence not in accordance with law and the sentence should be reopened and that the parties should relist it, so the matter was then relisted before me on 5 February this year so that the point as to the application of section 5(2) could be ventilated.  After hearing some argument on that matter, it seemed convenient to adjourn the matter again, because the facts of the matter raise a fairly acute point of statutory interpretation.  The matter having been adjourned on 5 February, it’s come back before me today so that it could be fully argued, and I have the benefit of written outlines on behalf of both the Crown and the defence. 

I am not convinced that I need to reopen the sentence imposed;  in fact, my view is that section 5(2) of the Drugs Misuse Act does not apply to the offence of trafficking here.  I’ll explain why.  The starting point must be the definition of trafficking at section 5(1) of the Drugs Misuse Act:

A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.

While we get used to calling the offence trafficking in a shorthand way, we do have to remember that the offence is carrying on the business of trafficking.  That is a continuing offence;  see the case of Ianculescu [1999] QCA 439, paragraph 23.  One of the arguments in Ianculescu is set out at paragraph 22 of the Court of Appeal’s judgment, and I’ll just extract that:

Before us it was suggested that the plea of guilty would not carry with it the implication that the business was carried on throughout the period alleged in the indictment, and that the applicant would be guilty of an offence if at any time during that period for however limited a time the business was carried on.

That is, it was an argument raised by defence counsel to mitigate the gravity of the trafficking.  The Court of Appeal rejected this approach, saying at paragraph 24, per Pincus JA:

In my view the conclusion to be drawn from the applicant’s plea of guilty is an acknowledgment that he carried on the business between the dates stipulated in the indictment.  Such a conclusion would also be reasonably open as a matter of inference from the undisputed facts.  

At paragraph 44:

In my view, a continuing offence constituted by a course of conduct such as the count of carrying on the business of unlawfully trafficking in a dangerous drug must be regarded as an offence committed throughout the period concerned.

I accept the authority of that, so that when I look to see the period of the trafficking in this case, it is determined by the words of the indictment to which the defendant has pleaded guilty.  Here, those words are:

That between the 12th day of August 2013 and the 5th day of September 2013 at Brisbane in the State of Queensland [the defendant] carried on the business of unlawfully trafficking in a dangerous drug.

That is the offence to which the defendant had pleaded guilty. 

Section 5(2) of the Drugs Misuse Act applies so as to impose a mandatory term of actual imprisonment for an offence of trafficking, but section 145 of the Drugs Misuse Act determines whether or not section 5(2) will apply.  It says:

Section 5(2) applies to an offence against that section only if the act or omission constituting the offence occurred wholly on or after 13 August 2013.

The Crown here says that the first act or omission relied upon by it and evidenced in the schedule of facts before me occurred on or after 13 August so that section 145 of the Drugs Misuse Act applies and the offence is wholly on or after 13 August 2013.  In my opinion, that approach is not warranted, having regard to the authority of Ianculescu.  The defendant has pleaded guilty to carrying on the business of trafficking between 12 August 2013 and 5 September 2013;  that is, he has pleaded guilty to carrying on the business during a period which is not wholly on or after 13 August 2013.  I think this is clear having regard to Ianculescu, and also as a matter of the words in the sections.

A subsidiary question arises as to the meaning of “between” in the indictment.  The Crown said – and Mr Heaton for the defendant acknowledged it was his understanding of the practice – that it is a common practice, if not an invariable practice, on the part of the DPP to choose a date either side of the first and last acts of trafficking when choosing the dates in the indictment.  I was unaware of that practice.  I do not think it can affect the interpretation of the charge in the indictment, and I would make an analogy between the subjective intentions of a party to a contract being irrelevant to the objective meaning of the words used in a contract.

It is true that “between” can be used in different ways in ordinary English language.  It could be used, for example, to say that the Timor Sea lies between Australia and Timor.  Neither Australia nor Timor would be included in the Timor Sea.  That is, they both mark boundaries outside the Timor Sea or the relevant thing spoken of. However, in terms of the way it is used in the indictment, “between the 12th of August and the 5th of September”, my understanding of ordinary English language is that it is used in an inclusive way.  In much the same way, if I say I work between Monday and Friday, I do not mean I work on Tuesday to Thursday, but that I start work on Monday and finish on Friday.  It seems to me, therefore, that there is nothing to avail the Crown having regard to the use of the word “between” or having regard to the DPP’s apparent practice.