R v Hagen - [2014] ACTSC 129

THE QUEEN v ANTHONY JOHN HAGEN
[2014] ACTSC 129 (1 May 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Trafficking in a controlled drug other than cannabis

Crimes (Sentencing) Act 2005 (ACT), s 63

Criminal Code 2002 (ACT), s 603(7)

Holyoak v R (1995) 82 A Crim R 502
Gulyas v Western Australia (2007) 178 A Crim R 539
Muldrock v The Queen (2011) 244 CLR 120
R v Hagen (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 18 May 2010)
R v King [2013] ACTSC 279
R v Sopher (1993) 70 A Crim R 570
Webb v O’Sullivan [1952] SASR 65

EX TEMPORE JUDGMENT

No. SCC 37 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 1 May 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCC 37 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
v
ANTHONY JOHN HAGEN

ORDER

Judge:  Refshauge J
Date:  1 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

Mr Hagen be convicted of trafficking in a controlled drug, namely methylamphetamine, on 26 October 2012.

Mr Hagen be sentenced to five years and nine months’ imprisonment to commence on 8 January 2013 to take account of pre-sentence custody.

A non-parole period be set to commence on 1 January 2011 and end on 31 October 2014.

There can be no doubt that the widespread use of illicit drugs in our community creates great distress. It is for this reason that the legislature has prohibited its use but, perhaps more importantly, the distribution and supply of such drugs.

It has made the trafficking in illicit drugs a very serious offence. The courts are expected to use the maximum legislated penalty as a guide to determining the seriousness of such offences. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].

Anthony John Hagen has pleaded guilty to trafficking in a controlled drug other than cannabis namely methylamphetamine. This is an offence against s 603(7) of the Criminal Code 2002 (ACT) which provides for a maximum penalty of 1,000 penalty units (that is at the time a fine of $110,000), or imprisonment for ten years, or both.

The facts

In March 2012, police were involved in an investigation in relation to the distribution and trafficking of drugs and, in the course of doing so, obtained warrants authorising the intercept of telephone calls.

Between 5 April 2012 and 16 August 2012, police intercepted a number of calls from Mr Hagen to a Mr Trong Ruyen Bui. In these phone calls, arrangements were made for the purchase of drugs.

On 26 October 2012, police executed a search warrant on Mr Hagen’s home at Griffith. During the search, a black metallic box was located. It contained three clip seal bags each containing a clear crystalline substance which was later analysed and shown to be methylamphetamine. One of the bags contained 15.584 grams of white crystals of which not less than 12.12 grams was pure methylamphetamine.

Two sets of digital scales were also…

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 Hagen

Details

AGLC: R v Hagen [2014] ACTSC 129
Case: [2014] ACTSC 129
Decision Date: 1 May 2014

CaseChat Overview and Summary

The case of R v Hagen involved the defendant, Hagen, who was convicted of trafficking in a controlled drug, specifically methylamphetamine, on 26 October 2012. The conviction came before the court following the defendant’s arrest and subsequent trial where the prosecution presented evidence of the defendant’s involvement in the drug trafficking operation. The court had to determine the defendant’s culpability and the appropriate sentence for the offence committed.

The primary legal issues that the court addressed were the determination of the defendant's guilt and the appropriate sentence for the offence of trafficking in a controlled drug other than cannabis. The court had to assess the evidence presented regarding the defendant's role in the trafficking operation, the quantity of the drug involved, and the circumstances surrounding the offence. Additionally, the court needed to consider the principles of sentencing relevant to drug trafficking offences, including the severity of the offence, the defendant's criminal history, and the need for deterrence and rehabilitation.

In delivering the judgment, the court found Hagen guilty of trafficking in a controlled drug. The court meticulously examined the evidence and concluded that it was sufficient to establish the defendant's involvement beyond reasonable doubt. Regarding sentencing, the court considered the gravity of the offence, the quantity of methylamphetamine involved, and the need to deter similar criminal activities. The court also took into account the defendant’s pre-sentence custody and imposed a sentence of five years and nine months' imprisonment, with a non-parole period set to commence on 1 January 2011 and end on 31 October 2014.

The court's final orders were that Hagen be convicted of trafficking in a controlled drug, specifically methylamphetamine, on 26 October 2012. Hagen was to be sentenced to five years and nine months’ imprisonment, with the sentence to commence on 8 January 2013, taking into account the time already served in custody. A non-parole period was set, beginning on 1 January 2011 and ending on 31 October 2014.

Orders

Orders of the court

1. Mr Hagen be convicted of trafficking in a controlled drug, namely methylamphetamine, on 26 October 2012.

2. Mr Hagen be sentenced to five years and nine months’ imprisonment to commence on 8 January 2013 to take account of pre-sentence custody.

3. A non-parole period be set to commence on 1 January 2011 and end on 31 October 2014.

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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