R v Dudeck - [2015] ACTSC 80

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Dudeck
Citation:	[2015] ACTSC 80
Hearing Date:	20 March 2015
DecisionDate:	20 March 2015
Before:	Murrell CJ
Decision:	Effective sentence of five months and two weeks, suspended for 18 months.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – traffic in trafficable quantity of cannabis – cultivate a trafficable quantity of cannabis with intent to sell – possess prohibited weapon – possess prohibited drug of dependence – early guilty plea – substance abuse – mental health – rehabilitation
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33 Criminal Code 2002 (ACT) ss 603(5), 616(5) Drugs of Dependence Act 1989 (ACT) s 169(1) Magistrates Court Act 1930 (ACT) s 90B Prohibited Weapons Act 1996 (ACT) s 5
Parties:	The Queen (Crown) Faye Sheree Dudeck (Offender)
Representation:	Counsel Ms A Jamieson-Williams (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 265 of 2014; SCC 52 of 2015

Murrell CJ:

Procedural History

The offender adheres to pleas of guilty entered in the Magistrates Court to three offences:

(a)Between 31 December 2012 and 22 October 2013, traffic in a trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code 2002 (ACT) (the Criminal Code) (maximum available penalty 10 years' imprisonment and/or a fine).
(b)Between 8 September 2013 and 22 October 2013, cultivate a trafficable quantity of cannabis with intent to sell, contrary to s 616(5) of the Criminal Code (maximum available penalty 10 years' imprisonment and/or a fine).
(c)On 21 October 2013, possess a prohibited weapon (two capsicum spray canisters), contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (maximum available penalty five years' imprisonment and/or a fine).

A trafficable quantity of cannabis is prescribed as 300 grams. A commercial quantity is prescribed as 30 kilograms. The trafficable quantity of plants in relation to the offence of cultivation is prescribed as 10 plants.

The offender was charged with these offences on 16 June 2014. Initially, she entered pleas of not guilty. In July 2014 the matter was adjourned for the brief of evidence to be prepared. The offender pleaded guilty to these offences on 6 November 2014 (confirmed on 13 November 2014), 13 November 2014 and 18 September 2014 respectively. The offender was committed to the Supreme Court for sentence on 13 November 2014.

The offender adheres to pleas of guilty entered in the Magistrates Court to two related offences:

(a)On 21 October 2013, possess a prohibited drug of dependence (methylamphetamine), contrary to s 169(1) of the Drugs of Dependence Act, 1989 (ACT) (the Drugs of Dependence Act) (maximum penalty two years' imprisonment and/or a fine).
(b)On 21 October 2013, possess a prohibited drug of dependence (oxycodone), contrary to s 169(1) of the Drugs of Dependence Act (maximum available penalty two years' imprisonment and/or a fine).

The offender was charged with the related offences on 16 June 2014 and 23 October 2014 respectively. She pleaded…

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.

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Details

AGLC: R v Dudeck [2015] ACTSC 80
Case: [2015] ACTSC 80
Decision Date: 20 March 2015

CaseChat Overview and Summary

The case of R v Dudeck involved the respondent, who was charged with cultivating a trafficable quantity of cannabis with intent to sell, possessing a prohibited weapon, and possessing a prohibited drug of dependence. The matter was heard in the Supreme Court of Queensland. The respondent entered an early guilty plea on all charges.

The central legal issues the court had to address were the appropriate sentencing approach, given the respondent’s early guilty plea, his history of substance abuse, mental health issues, and prospects for rehabilitation. The court needed to balance the need for punishment and deterrence with the respondent’s potential for rehabilitation and the principles of sentencing proportionality and parity.

The court considered the respondent’s early guilty plea, which warranted a discount in the sentence. However, it also took into account the seriousness of the offences, particularly the intent to sell a significant quantity of cannabis. The court acknowledged the respondent’s history of substance abuse and mental health issues, which contributed to his offending behaviour. The court found that a suspended sentence would allow the respondent to engage in rehabilitation programs and address his underlying issues without the immediate impact of imprisonment. The court ultimately decided that a sentence of five months and two weeks, suspended for 18 months, was appropriate. This sentence aimed to provide a pathway for the respondent to address his substance abuse and mental health problems while ensuring community protection and maintaining the deterrent effect of the law.

Orders

Orders of the court

Effective sentence of five months and two weeks, suspended 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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