Pak v R - [2015] NSWCCA 45

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Pak v R
Medium Neutral Citation:	[2015] NSWCCA 45
Hearing Date(s):	23 March 2015
Date of Orders:	27 March 2015
Decision Date:	27 March 2015
Before:	R A Hulme J at [1] Davies J at [2] Bellew J at [44]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentencing – supply of prohibited drugs – two offences - whether applicant involved in trafficking to a substantial degree – decision based not solely on quantity of drugs but other indicia of supply – whether decision open to sentencing judge – whether sentence manifestly excessive – no exceptional circumstances where finding of trafficking to a substantial degree - sentences entirely concurrent – appeal dismissed
Cases Cited:	House v The King (1936) 55 CLR 499 Kendall v R [2015] NSWCCA 13 R v Gu [2006] NSWCCA 104 Youssef v R [2014] NSWCCA 285
Category:	Principal judgment
Parties:	Mohammad Baghir Haidari Pak (Applicant) Crown (Respondent)
Representation:	Counsel: M Avenall (Applicant) N Williams (Crown) Solicitors: Legal Aid of NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/287362
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Date of Decision:	24 July 2014
Before:	Lerve DCJ
File Number(s):	2012/287362

JUDGMENT

R A HULME J: I agree with Davies J.
DAVIES J: On 6 February 2014 the Applicant pleaded guilty to two offences as follows:
Count 1: Supply a prohibited drug namely 6.17g of N,N dimethylamphetamine.
Count 2: Supply a prohibited drug namely 6.48g of amphetamine.
The maximum penalty for each offence was 15 years imprisonment.
Three offences were included on a s 166 Certificate as follows:
(1)Possess prohibited drug being 10mg of methadone;
(2)Possess prohibited drug being 5.74g of opium; and
(3)Drive under the influence of drugs.
He was sentenced by Judge Lerve in the District Court on 24 July 2014 as follows:
Counts 1 and 2: On each count a non-parole period of 12 months commencing 22 July 2014 and expiring 21 July 2015 with an additional term of 9 months expiring 21 April 2016.
On each of the two charges of possess a prohibited drug, a fixed term of 2 months commencing 24 July 2014 and expiring 23 September 2014.
In respect of driving under the influence of drugs, a fine of $200 and a disqualification of 12 months.
The Applicant now seeks leave to appeal from the sentence imposed on two grounds:
Ground 1: Lerve DCJ erred in finding Mr Haidari Pak was “involved in trafficking … involved to a substantial degree”;
Ground 2: The sentences were manifestly excessive.

Facts

The police observed the Applicant driving erratically and required him to stop his vehicle. He complained of back pain. He was disoriented, his eyes were glazed and watery. He was subjected to a road side breath test which returned a negative result.
He was asked where he was going but he could not provide a clear answer. The police therefore conducted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pak v R

Details

AGLC: Pak v R [2015] NSWCCA 45
Case: [2015] NSWCCA 45
Decision Date: 27 March 2015

CaseChat Overview and Summary

The appeal in Pak v R was heard by the High Court of Australia. The appellant, Pak, was convicted of two offences involving the supply of prohibited drugs. The central issue before the court was whether the trial judge had erred in sentencing Pak, particularly in relation to the determination that Pak was involved in trafficking to a substantial degree. The court was also tasked with determining whether the sentence imposed was manifestly excessive and if there were exceptional circumstances warranting a reduction in sentence.

The court examined the legal principles governing sentencing in drug supply cases, particularly focusing on the criteria for determining substantial involvement in trafficking. It was established that the quantity of drugs was not the sole factor in such a determination; other indicators such as the manner of supply and the role of the offender must also be considered. The court held that the trial judge had appropriately evaluated these factors and concluded that the decision regarding substantial involvement in trafficking was open to the trial judge and was supported by the evidence. Furthermore, the court found that the sentence, which was entirely concurrent, was not manifestly excessive given the nature and circumstances of the offences.

In conclusion, the High Court dismissed the appeal. The court upheld the trial judge's assessment that Pak was involved in trafficking to a substantial degree and found no error in the sentencing process. The sentences imposed were considered appropriate and not manifestly excessive, given the evidence and the role Pak played in the drug supply activities.

Orders