R v BM - [2019] ACTSC 281

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BM
Citation:	[2019] ACTSC 281
Hearing Date:	14 October 2019
DecisionDate:	14 October 2019
Before:	Elkaim J
Decision:	See [19]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Traffic in controlled drug other than cannabis namely heroin – guilty plea
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 42 Criminal Code 2002 (ACT) s 603(7) Magistrates Court Act 1930 (ACT) s 90A
Cases Cited:	R v Hoang [2016] ACTSC 183
Parties:	The Queen (Crown) BM (Offender)
Representation:	Counsel L Marino (Crown) P Edmonds (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 138 of 2019

ELKAIM J:

On 12 June 2019, the offender entered a plea of guilty in the Magistrates Court to one charge of trafficking in a controlled drug other than cannabis, namely heroin. The matter was committed to the Supreme Court for sentence on the same day pursuant to s 90A of the Magistrates Court Act 1930 (ACT). This offence is contrary to s 603(7) of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years imprisonment and/or fine of $160,000.

The offender was born in Yugoslavia, as it then was, in 1966. She came to Australia in 1969. She apparently did not get on very well with her parents. She ran away from home when she was 15 years of age and again a year later. She has lived in Canberra since 2014.

The offender has two children from two separate relationships. She currently lives with one of her children. Her relationships have been marred by violence. In July 2018 her partner died as a result of a drug overdose. She found his body. This was no doubt a traumatic experience.

The offender left school during Year 11. She has had a bad business experience and unfortunately does not have any qualifications. She is reliant on Centrelink benefits.

The offender has been using heroin since her early twenties. She has sold heroin in order to fund her own use of it. She is currently on a methadone program.

A psychological report says that the offender has suffered from severe depression and anxiety. However she has improved since treatment, which commenced in January of this year. She is likely to require long-term psychological therapy.

Other than some traffic matters in Queensland, the offender does not have a criminal record. This entitles her to a degree of leniency. Her plea of guilty also entitles her to a discount on her sentence.

On 26 February 2019 a search warrant was issued permitting the search of a Ford motor vehicle. On 1 March 2019 police stopped this vehicle. The offender was the driver and sole occupant. The police search of the vehicle located 28.880gms of heroin. A trafficable quantity is 5gms.

It is clear from the admissions made to the police during the execution of the search warrant that the offender…

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 BM

Details

AGLC: R v BM [2019] ACTSC 281
Case: [2019] ACTSC 281
Decision Date: 14 October 2019

CaseChat Overview and Summary

In the matter of R v BM, the defendant faced charges related to trafficking a controlled drug, specifically heroin. The case was heard in the relevant court, where the primary dispute centred around the appropriate sentencing for the defendant's plea of guilt to the charge. BM had entered a guilty plea, which required the court to consider the circumstances of the offence and the principles guiding sentencing for such crimes. The legal issues that emerged involved determining the severity of the sentence, taking into account the defendant's prior criminal history, the quantity of the drug involved, and the circumstances surrounding the offence.

The court was tasked with assessing the gravity of the offence and the culpability of the defendant. This involved a detailed examination of the facts and the nature of the drug trafficking activity. The judge had to balance the need for deterrence and the rehabilitation of the offender against the principles of proportionality and justice. The court considered the plea of guilt as an indicator of remorse and cooperation, but also weighed it against the seriousness of the offence and the potential impact on the community. The sentencing principles outlined in relevant legislation and judicial precedents were meticulously applied to arrive at a fair and just sentence.

After thorough deliberation, the court concluded that the sentence should reflect both the seriousness of the offence and the mitigating factors presented by the defendant. The judge determined that a balanced approach was necessary, ensuring that the punishment was sufficient to deter future offences while also providing an opportunity for the defendant's rehabilitation. The final orders were made, taking into account all the relevant factors and the principles of sentencing for drug trafficking offences. The court's decision was aimed at achieving a just outcome that served the interests of justice and the protection of the community.

Orders

Orders of the court

See [19]

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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