Thursday, October 20, 2011

Lessons from non-precedential appeals

I've blogged previously about the Court of Appeal's innovative use of catchwords to declare that a case raises no point of principle (see here and here). Recently, Ashley and Weinberg JJA released another batch of decisions with the "no point of principle" catchword. One of them, however, arguably does raise a (minor) point of principle and so raises the question of how later courts should treat it. In Harper v R [2011] VSCA 314, the offender was a Thai national who attempted to smuggle over 100g of heroin into Australia, concealed in body cavities. During the sentencing remarks, the judge stated:
By resorting to internal concealment of the drugs, you made detection of the offence even more difficult. This is an aggravating feature of your crime.
Although there was no ground of specific error, Ashley JA at [22] took the time to comment that:
Counsel for the Crown did not submit today that this was a correct statement of principle. In my opinion, it was not. It is at the heart of the particular offence that detection of the drugs will be made as difficult as possible. So to say does not mean that what I regard as a manifestly excessive sentence is to be explained by the judge’s particular observation. Rather, I take the opportunity to indicate my opinion that the observation was unsound.
Bearing in mind what the Court said in Ciantar & Rose, should judges give any weight to this statement, or should they treat it as wholly irrelevant? Is there a difference between a case that raises "no point of principle" and one that is "without precedent value"? Indeed, if there is a later case where a judge again treats the manner of concealment as an aggravating factor for importation, would the court reprimand counsel for referring to Harper in an argument that this constituted specific error? These are a couple of questions that are thrown up when, despite declaring that a case raises no point of principle, the court makes statements on important general issues, such as whether or not something is an aggravating factor.

No comments:

Post a Comment