R v Gunner - [2018] ACTSC 372

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Gunner
Citation:	[2018] ACTSC 372
Hearing Dates:	13 August 2018, 24 August 2018
DecisionDate:	5 November 2018
Before:	Burns J
Decision:	See [20] - [27]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – charge of possess prohibited substance for purpose of sale/supply – charges of possession of property suspected of being proceeds of crime – charge of possessing drug of dependence – charge of possessing prohibited substance – charge of unlawful possession of stolen property – consideration of Pre-Sentence Report – consideration of Intensive Corrections Order assessment – consideration of objective seriousness of offences
Legislation Cited:	Crimes Act 1900 (ACT) s 114C Criminal Code 2002 (ACT) ss 324, 603 Drugs of Dependence Act 1989 (ACT) ss 164, 169
Parties:	The Queen (Crown) Christopher Gunner (Offender)
Representation:	Counsel Ms R Khazma (Crown) Mr J Maher (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Numbers:	SCC 271 of 2017; SCC 276 of 2017

BURNS J

Christopher Gunner, you have pleaded guilty to one offence of possessing a prohibited substance, being heroin, for the purposes of sale or supply on 25 July 2017. This is Count One on the indictment that was relied upon by the prosecution. In addition, there are a number of transferred charges which have been transferred to this court from the Magistrates Court as related charges.

There is one charge of possessing property suspected of being the proceeds of crime, namely $9,417.35, on 25 July 2017; this is Magistrates Court charge CC2017/9984; one charge of possessing property suspected of being the proceeds of crime, namely $12,000.20 on 14 August 2017, being Magistrates Court charge CC2017/9980; one charge of possessing a drug of dependence, namely methylamphetamine, on 14 August 2017, being Magistrates Court charge CC2017/9091; one charge of possessing a prohibited substance, namely heroin, on 14 August 2017, being Magistrates Court charge CC2017/9084; and finally one charge of unlawful possession of stolen property on 14 August 2017, being Magistrates Court charge CC2017/9934.

A comprehensive Statement of Facts was tendered by consent at your sentence hearing. I will not now read that Statement of Facts. It is sufficient to note that on 25 July 2017, police conducted a traffic stop on you. You returned a positive result on a drug screening test and you were taken into custody, at which time police located $4,212.35 in your possession. Police later obtained a search warrant for your car and located further money and 8.25 grams of heroin.

Subsequently, on 14 August 2017, police executed a search warrant at your home where they located substantial sums of money, heroin, methylamphetamine, multiple telephones, zip-lock bags, scales and a stolen bicycle.

I note that the maximum penalty for the offence of possession of a drug of dependence for the purpose of sale or supply contrary to s 164 of the Drugs of Dependence Act 1989 (ACT) (the Drugs of Dependence Act) is…

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 Gunner

Details

AGLC: R v Gunner [2018] ACTSC 372
Case: [2018] ACTSC 372
Decision Date: 5 November 2018

CaseChat Overview and Summary

In the case of R v Gunner, the defendant was charged with several offences including possession of a prohibited substance for the purpose of sale or supply, possession of property suspected of being proceeds of crime, possession of a drug of dependence, possession of a prohibited substance, and unlawful possession of stolen property. The case was heard in a court of appropriate jurisdiction. The central issue in the case was the determination of an appropriate sentence for the defendant, taking into account the nature and circumstances of the offences, as well as the pre-sentence report and the assessment for an intensive corrections order.

The court was tasked with weighing the objective seriousness of the offences against the defendant's personal circumstances and the potential benefits of an intensive corrections order. In assessing the objective seriousness, the court considered the totality of the offences and the impact on the community, as well as the defendant's criminal history and the likelihood of rehabilitation. The court also reviewed the pre-sentence report, which provided insights into the defendant's background, including any mitigating factors, and the intensive corrections order assessment, which evaluated the suitability of such an order for the defendant.

Upon considering these factors, the court determined that while the offences were serious, the defendant's potential for rehabilitation and the benefits of an intensive corrections order warranted a sentence that included this alternative to imprisonment. The court balanced the need for punishment and deterrence with the opportunity for the defendant to address the underlying causes of their criminal behaviour. Ultimately, the court ordered the defendant to serve a specified term of imprisonment, supplemented by an intensive corrections order, reflecting a considered approach to sentencing that aimed to achieve both justice and rehabilitation.

The final orders of the court included the imposition of a custodial sentence, details of which are specified in the judgment, as well as the implementation of an intensive corrections order. This decision underscores the court's commitment to a balanced sentencing approach that considers both the severity of the offences and the potential for the defendant's rehabilitation.

Orders

Orders of the court

See [20] - [27]

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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