R v French - [2021] ACTSC 205

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v French
Citation:	[2021] ACTSC 205
Hearing Dates:	13, 27 August 2021
DecisionDate:	27 August 2021
Before:	Murrell CJ
Decision:	Offender sentenced to a total of two years and one month’s imprisonment with a 13-month nonparole period.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking a controlled drug – where controlled drug is methylamphetamine – where history of substance abuse – where offender on conditional liberty imposed for drug offences – breach of good behaviour orders
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 33, 35 Criminal Code 2002 (ACT) s 603(7)
Cases Cited:	Bui v The Queen [2015] ACTCA 5 R v Hoang [2020] ACTSC 262
Parties:	The Queen (Crown) Brett Matthew French (Offender)
Representation:	Counsel M Dyason (Crown) P Bevan (Offender)
Solicitors ACT Director (Crown) Bevan & Co (Offender)
File Number:	SCC 110 of 2021

MURRELL CJ:

Introduction

The offender is to be sentenced for the offence that, on 4 January 2021, he trafficked in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code2002 (ACT).

The maximum penalty for the offence is imprisonment for 10 years, a fine of $160,000, or both.

After initially pleading not guilty, and after a brief of evidence had been provided, the offender pleaded guilty on the fifth mention in the Magistrates Court. Although the plea was not entered at the earliest opportunity, I consider that he should be afforded the benefit of a discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) of up to 25 per cent.

The offence placed the offender in breach of three good behaviour orders that had been imposed by the Magistrates Court. I am asked to deal with those breaches.

The offender has been in custody since the date of the offence.

Facts of the offence

At about 6:20PM on 4 January 2021, police executed a search warrant at the offender's residence in Higgins.

They heard movement within a shed at the premises and attempted to gain access via door but found that it was locked. The roller door to the shed was closed. The offender opened the pedestrian door and allowed police to enter. When they entered the shed, the offender was present with three other men, but it is not alleged that those other men have committed any relevant offence

The shed contained a large amount of property.

The following items were seized:

(a)141.107 grams of methylamphetamine with a base of 16.5 per cent purity in a clear plastic container.
(b)43.242 grams of methylamphetamine with a base of 78.4 per cent purity in a clip seal bag.
(c)“Cutting agents” and chemicals.
(d)A black electronic scale.
(e)Several large clip seal bags and rubber gloves.
(f)Several mobile telephones.

In addition, police observed a comprehensive closed circuit television system involving cameras at various points around the premises that transmitted to screens within the shed.

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 French

Details

AGLC: R v French [2021] ACTSC 205
Case: [2021] ACTSC 205
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v French revolved around the sentencing of Brett Matthew French, who was found guilty of trafficking in a controlled drug, specifically methylamphetamine, on 4 January 2021. The maximum penalty for this offence was imprisonment for 10 years, a fine of $160,000, or both. French, who had a history of substance abuse and multiple previous convictions for drug-related offences, breached three good behaviour orders imposed by the Magistrates Court during the commission of this offence. The court had to decide the appropriate sentence, considering the objective seriousness of the offence, the offender’s role, the quantity and purity of the drug, and the subjective features of the offender, including his criminal history and personal circumstances.

The legal issues before the court involved determining the appropriate sentence for the trafficking offence, considering both the objective and subjective factors. The court had to assess the role of the offender within the drug trafficking operation, the quantity and purity of the drug involved, and the offender's personal history and circumstances. The court also needed to consider the breaches of good behaviour orders and their implications for sentencing. The court considered the sentencing principles relevant to drug offenders, the nature of the breach offences, and the appropriate starting point for the sentence, applying statutory provisions and relevant case law.

The court found that the operation was not unsophisticated, as evidenced by the CCTV system and the presence of "cutting agents" and chemicals. French was characterised as a low to mid-level dealer, and the total weight of the drug was approximately 184 grams, with a significant portion being low in concentration due to being "cut." The subjective features included French's history of substance abuse, his motivation to support his drug habit and meet living expenses, and his limited engagement with pro-social peers and activities. The court considered the offender’s age, criminal history, family background, and current employment situation. The court concluded that the sentencing purposes of adequate punishment, general deterrence, personal deterrence, and protection of the community were prominent.

After considering all the factors, the court determined that the appropriate starting point for the sentence was 32 months' imprisonment. A 25% discount was applied pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT), resulting in a sentence of two years' imprisonment. The court set a nonparole period of 13 months, considering French’s lack of prior incarceration and the potential for rehabilitation during imprisonment. The court also addressed the breach of good behaviour orders, imposing a two-month sentence for the most significant breach, which had already expired. The final orders included a sentence of two years’ imprisonment for the principal offence, with a nonparole period of 13 months.

Orders