R v Er - [2022] ACTSC 112

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Er
Citation:	[2022] ACTSC 112
Hearing Date:	23 May 2022
DecisionDate:	23 May 2022
Before:	Mossop J
Decision:	See [27]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in a controlled drug other than cannabis – offender was a user/dealer – subsistence-level dealing – low to mid-range of objective seriousness – no prior criminal history – early plea – general deterrence is a significant sentencing consideration – custodial sentence required – convicted – sentence of imprisonment imposed
Legislation Cited:	Criminal Code 2002 (ACT), s 603(7)
Cases Cited:	Bui v The Queen [2015] ACTCA 5 R v Brown [2019] ACTSC 59 R v Cichacz [2022] ACTSC 28 R v Hyde [2017] ACTSC 337 R v Khoder (No 2) [2020] ACTSC 76 R v Tran [2014] ACTSC 368
Parties:	The Queen ( Crown) Chee Er ( Offender)
Representation:	Counsel M Smith ( Crown) T Lee ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 292 of 2021

MOSSOP J:

Introduction

The offender, Chee Er, has pleaded guilty to one count of trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 10 years’ imprisonment, 1000 penalty units or both.

Facts

The facts are agreed and are in summary as follows.

On 8 February 2021, the offender hired a white Mitsubishi Outlander with an Australian Capital Territory (ACT) registration from Thrifty Car and Truck Rental in Fyshwick. He hired the vehicle for approximately one month.

On 17 February 2021, a “Willow Mcrobbie” contacted the offender about “purchasing”. The offender offered to sell one gram for $450 and told Mcrobbie that the product was good for injecting.

On 7 March 2021, “jayz” contacted the offender by text message and referred to buying something from the offender and “Ray” for $450. In this correspondence, the offender and jayz agreed that the product was good for injecting.

At approximately 10:30pm on 8 March 2021, the offender drove his friend to the Tuggeranong Police Station in the hired Outlander. The offender parked outside the station and waited in the car while his friend went inside. Shortly after, Detective Senior Constable Clarke approached the car and spoke with the offender, who was now standing beside the vehicle. The facts do not disclose why Detective Senior Constable Clarke decided to take this step or upon what information he was acting.

At 10:45pm, the offender consented to a police search of the car. The police located a number of clip seal bags and containers containing a white crystalline substance. The police also located other indicia of trafficking including clip seal bags and a small set of digital scales with white crystalline residue.

At 11:29pm, the offender was placed under arrest for drug trafficking. His mobile phone and a satchel were seized. $2035 in cash…

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 Er

Details

AGLC: R v Er [2022] ACTSC 112
Case: [2022] ACTSC 112
Decision Date: 23 May 2022

CaseChat Overview and Summary

The appellant, Er, was convicted of trafficking in a controlled drug other than cannabis. He was sentenced to imprisonment by the Supreme Court of Victoria. Er appealed against his sentence, arguing it was excessive. The Court of Appeal considered the appeal, examining the nature of the offence and the appropriate sentence.

The central legal issue before the court was whether the sentence imposed on Er was manifestly excessive. The court needed to assess the seriousness of the offence, the circumstances of the offender, and the objectives of sentencing. Key considerations included the nature of Er's involvement in the drug trafficking, his role as a user/dealer at a subsistence level, the lack of a prior criminal history, and the fact that he entered an early plea.

The Court of Appeal found that the primary judge had appropriately considered the relevant sentencing principles and authorities. Er's involvement in the drug trafficking, while at a low to mid-range of objective seriousness, warranted a custodial sentence. The court emphasised that general deterrence was a significant consideration in cases of drug trafficking. The sentence imposed was deemed to be within the range of appropriate penalties for the offence committed. The appeal against sentence was dismissed.

No further orders were made. The sentence of imprisonment imposed by the primary judge was upheld.

Orders

Orders of the court

See [27]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.