R v BG - [2017] ACTSC 382

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BG
Citation:	[2017] ACTSC 382
Hearing Date:	13 December 2017
DecisionDate:	13 December 2017
Before:	Elkaim J
Decision:	See [21]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – cultivate cannabis plant for sale – possess child exploitation material – possessing a prohibited substance – possessing a drug of dependence.
Legislation Cited:	Crimes Act 1900 (ACT) s 65 Criminal Code 2002 (ACT) ss 603(7) and 616(8) Drugs of Dependence Act 1989 (ACT) ss 169(1) and 171(1)(b)
Cases Cited:	Bui v The Queen [2015] ACTCA 5 R v Cooper [2012] ACTCA 9 R v De Leeuw [2015] NSWCCA 183
Parties:	The Queen (Crown) BG (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr K Archer (Offender)
Solicitors ACT Office of the Director of Public Prosecutions (Crown) Canberra Legal Group (Offender)
File Numbers:	SCC 49 of 2017; SCC 50 of 2017

ELKAIM J:

On 26 July 2017, the offender pleaded guilty to three counts in an amended indictment. The three counts and their respective maximum penalties are:

(a)Trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is a fine of $150,000 and/or 10 years imprisonment.
(b)Cultivate a cannabis plant for sale, contrary to s 616(8) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is a fine of $45,000 and/or 3 years imprisonment.
(c)Possess child exploitation material, contrary to s 65 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is a fine of $105,000 and/or 7 years imprisonment.

The offender is also to be sentenced in respect of two transfer charges. These are:

(a)Possessing a prohibited substance, contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty for this offence is a fine of $7,500 and/or 2 years imprisonment.
(b)Possessing a drug of dependence, contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty for this offence is a fine of $7,500 and/or 2 years imprisonment.

The offender was born in Canberra in 1976. In 2009, he was convicted of an offence of driving under the influence of alcohol. It would appear that this is the extent of his criminal record.

The offender had a relatively stable upbringing. However, he appears to have been significantly affected by the suicide of a close friend, which occurred when he was about 20 years old. His mother died in 2015, which also severely affected him.

The offender has been in three lengthy relationships and has a daughter who is now 17 years of age. The offender’s daughter currently resides with her mother.

The offender successfully completed Year 12. He has obtained a number of vocational qualifications. The offender has been employed as a musician in a number of bands. He was asked to leave because of his…

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 BG

Details

AGLC: R v BG [2017] ACTSC 382
Case: [2017] ACTSC 382
Decision Date: 13 December 2017

CaseChat Overview and Summary

In the case of R v BG, the appellant was convicted on various drug-related charges, including trafficking in a controlled drug other than cannabis, cultivating a cannabis plant for sale, possessing child exploitation material, and possessing a prohibited substance and a drug of dependence. The case was heard and determined by the court, which had to consider the appropriate sentence for these serious offences.

The legal issues before the court included determining the severity of the crimes, the appellant's criminal history, and the circumstances surrounding the offences. The court had to weigh the aggravating and mitigating factors to arrive at a just and proportionate sentence. Additionally, the court needed to ensure that the sentence reflected the seriousness of the crimes and served the purposes of punishment, deterrence, and rehabilitation.

The court's reasoning involved a detailed analysis of the evidence presented, the appellant's criminal history, and the impact of the crimes on the community. The court considered the gravity of the offences, particularly the cultivation of a cannabis plant for sale and the possession of child exploitation material. The court also took into account the appellant's previous convictions and the potential for rehabilitation. Ultimately, the court determined that a sentence of imprisonment was necessary to adequately address the seriousness of the crimes and to protect the community.

The final orders of the court included a sentence of imprisonment, with specific details provided in the judgment. The court's decision was based on a comprehensive assessment of the evidence, the appellant's criminal history, and the principles of sentencing in criminal law. The court aimed to achieve a balance between punishment, deterrence, and the potential for rehabilitation, ultimately concluding that a custodial sentence was warranted for the serious nature of the offences committed.

Orders

Orders of the court

See [21]

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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