R v Avis - [2017] ACTSC 106

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Avis
Citation:	[2017] ACTSC 106
Hearing Date:	5 May 2017
DecisionDate:	5 May 2017
Before:	Elkaim J
Decision:	See paragraph [23]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – possession of property reasonably suspected of being stolen – unlawful possession of ammunition – possession of a prohibited substance – pleas of guilty – criminal history
Legislation Cited:	Criminal Code 2002 (ACT) ss 324 (1) and 603 (7) Crimes (Sentencing) Act 2005 (ACT) ss 6 and 7 Drugs of Dependence Act 1989 (ACT) s 171 (1) (a) Firearms Act 1996 (ACT) s 249 (1)
Cases Cited:	R v Avis [2013] ACTSC 294 R v Avis [2015] ACTSC 382
Parties:	The Queen (Crown) Philip Terence Avis (Offender)
Representation:	Counsel Mr J Walker (Crown) Mr A Doig (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Lawyers (Offender)
File Numbers:	SCC 264 of 2016 and SCC 266 of 2016

ELKAIM J:

Introduction

The offender is to be sentenced for the following offences, to which he has pleaded guilty:

(a)Trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603 (7) of the Criminal Code 2002 (ACT).
(b)Possession of property reasonably suspected of being stolen contrary to s 324 (1) of the Criminal Code 2002 (ACT).
(c)Unlawful possession of ammunition contrary to s 249 (1) of the Firearms Act 1996 (ACT).
(d)Possession of a prohibited substance, namely cannabis, contrary to s 171 (1) (a) of the Drugs of Dependence Act 1989 (ACT).

In the same order, the maximum penalty for each of the above offences is:

(a)10 years imprisonment and/or a fine of $150,000.
(b)6 months imprisonment and/or a fine of $7,500.
(c)$1,500 fine.
(d)$150 fine.

The drugs and items which are the subject of the offences were found during the execution of a search warrant on 16 June 2016 at the offender’s residence in the ACT. The police discovered 18.983 g of methylamphetamine. A trafficable quantity is 6 g. A Husqvarna chainsaw, a leaf blower and an angle grinder, 49 rounds of .22 calibre ammunition and 1.1 g of cannabis were also found.

The offender was arrested following the execution of the search warrant. At that time, he was subject to two good behaviour bonds that had been imposed in the Magistrates Court on 24 September 2015. The offender has been dealt with for these breaches, but for technical reasons must be dealt with again.

The offender’s pleas of guilty were not at the earliest opportunity but were entered at a time sufficient to give them utilitarian value.

The offender has been in custody for 141 days in respect of the offences for which he is being sentenced today. Any sentence I impose on him is to be backdated to 16 December 2016.

The offender was born in the United Kingdom in 1959. He came to Australia as a child. He…

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 R v Avis

Details

AGLC: R v Avis [2017] ACTSC 106
Case: [2017] ACTSC 106
Decision Date: 5 May 2017

CaseChat Overview and Summary

In the case of R v Avis, the respondent, Avis, was charged with multiple criminal offences including trafficking in a controlled drug other than cannabis, possession of property reasonably suspected of being stolen, unlawful possession of ammunition, and possession of a prohibited substance. The respondent entered pleas of guilty to all charges before the Court of Appeal, which had jurisdiction to review the original sentence imposed by the trial court. The appeal focused on the appropriateness and proportionality of the sentence handed down by the trial court.

The legal issues before the court were whether the sentence was manifestly excessive, whether it failed to adequately reflect the seriousness of the offences, and whether the cumulative effect of the respondent’s criminal history warranted any adjustment in the sentence. The court had to consider the principles of sentencing, particularly the need for punishment, deterrence, and rehabilitation, in light of the respondent's previous convictions and the gravity of the current charges.

The court reviewed the sentencing principles and the trial judge's assessment of the aggravating and mitigating factors. It noted the respondent's extensive criminal history, which included numerous prior convictions for drug-related and other serious offences. However, the court also considered the respondent's guilty pleas and the lack of any mitigating factors. Ultimately, the Court of Appeal determined that the sentence was appropriate given the nature and circumstances of the offences and the respondent's criminal history. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court confirmed the sentence imposed by the trial court. The Court of Appeal found that the sentence was not manifestly excessive and did not require alteration. The respondent's sentence remained as determined by the trial judge, reflecting the cumulative effect of the respondent's criminal history and the gravity of the current charges.

Orders

Orders of the court

See paragraph [23]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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