R v Cole - [2019] ACTSC 228

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cole
Citation:	[2019] ACTSC 228
Hearing Date:	21 August 2019
DecisionDate:	21 August 2019
Before:	Murrell CJ
Decision:	Offender sentenced to a total of 20 months’ imprisonment, suspended after serving 5 months upon entering into a good behaviour order for 18 months.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Money laundering – Possession of drug of dependence for sale – Possession of prohibited weapon – High objective seriousness – Where the offender has good prospect of rehabilitation – Whether fulltime custody required.
Legislation Cited:	Crimes Act 1900 (ACT) ss 114A, 114B Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33, 35 Criminal Code Regulations 2005 (ACT) Drugs of Dependence Act 1989 (ACT) s 164(2), Prohibited Weapons Act 1996 (ACT) s 5, sch 1 pt 1.2(1)
Cases Cited:	Bui v The Queen [2015] ACTCA 5 R v Lang [2018] ACTSC 215 R v Toumo'ua [2016] ACTSC 163
Parties:	The Queen (Crown) James Cole (Offender)
Representation:	Counsel P Dixon (Crown) M Kukulies-Smith (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Number:	SCC 123 of 2019

Murrell CJ

Introduction

The offender is to be sentenced for the following offences committed on 17 October 2018:

(a)Possession of a drug of dependence (cocaine) for the purpose of sale or supply to another person, contrary to s 164(2)(c) of the Drugs of Dependence Act 1989 (ACT). This offence carries a maximum penalty of five years' imprisonment, a fine of 500 penalty units ($80,000), or both.
(b)Recklessly deal with money that was the proceeds of crime, contrary to s 114B of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of 10 years' imprisonment, a fine of 1,000 penalty units ($160,000), or both.
(c)Unauthorised possession of a prohibited weapon (knuckle dusters), contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). This offence carries a maximum penalty of five years' imprisonment, a fine of 500 penalty units ($80,000), or both.

After a number of mentions in the Magistrates Court, and following service of a full brief of evidence, the defence made representations to the Crown. The representations were accepted and the offender pleaded guilty to the current charges on 3 June 2019. He was committed to the Supreme Court for sentence. In those circumstances, the appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) for the pleas of guilty is at least 20 per cent, and I will allow a slightly higher discount.

Following his arrest on 21 October 2018, the offender spent one night in custody before he was granted bail; the sentences will recognise that fact.

Facts

On 17 October 2018, police obtained a warrant to search a unit in Phillip, ACT, premises of which the offender was the sole occupant.

At 12:50 PM on that day, police executed the warrant. The offender was not at home. During the search,…

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 Cole

Details

AGLC: R v Cole [2019] ACTSC 228
Case: [2019] ACTSC 228
Decision Date: 21 August 2019

CaseChat Overview and Summary

The case of R v Cole involved the appellant, who was found guilty of multiple serious charges, including possession of a drug of dependence for the purpose of sale, possession of a prohibited weapon, and money laundering. The matter was heard in the Supreme Court of Victoria. The appellant contested the severity of the sentence imposed, arguing that it should be reduced to reflect the likelihood of rehabilitation and the absence of a need for full-time custody.

The legal issues that arose for determination were primarily focused on the appropriate sentencing approach given the appellant's prospects of rehabilitation and the high objective seriousness of the crimes committed. The court had to balance the need for deterrence and denunciation against the possibility of the appellant's rehabilitation and reintegration into society. It was also necessary to consider the principles of proportionality and whether the sentence imposed was commensurate with the gravity of the offences.

The court, in delivering its judgment, considered the nature and circumstances of the offences, the appellant's background, and the prospects for rehabilitation. It determined that while the crimes were of significant concern, the appellant's good prospects for rehabilitation and the absence of a need for full-time custody warranted a sentence that provided a pathway for reform. The court emphasised the importance of proportionality and the potential for the appellant to contribute positively to society upon release. Consequently, the original sentence was reviewed and adjusted to a total of 20 months' imprisonment, suspended after serving 5 months, with the condition of entering into a good behaviour order for 18 months.

The final orders of the court were that the appellant be sentenced to 20 months' imprisonment, with the sentence suspended after serving 5 months. The appellant was also required to enter into a good behaviour order for a period of 18 months. This decision reflects a balanced approach that considers both the seriousness of the crimes and the potential for the appellant to reform and reintegrate into society.

Orders

Orders of the court

Offender sentenced to a total of 20 months’ imprisonment, suspended after serving 5 months upon entering into a good behaviour order for 18 months.

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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