R v Himbert (No 2) - [2015] ACTSC 124

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Himbert (No 2)
Citation:	[2015] ACTSC 124
Hearing Date(s):	4 May 2015
DecisionDate:	8 May 2015
Before:	Burns J
Decision:	See [18]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – Particular Offences – drug offences – trafficking in a controlled drug other than cannabis.
Legislation Cited:	Criminal Code 2002 (ACT) s 603 (7)
Cases Cited:	The Queen v Fairbairn (unreported, Supreme Court of the ACT, Refshauge J, 27 February 2012) Yazdi v Chancellor [2011] ACTSC 171
Parties:	The Queen (Crown) Nathan Gerhard Himbert (Offender)
Representation:	Counsel Ms J Campbell (Crown) Ms H Hayunga (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aide ACT (Offender)
File Number:	SCC 163 of 2013

Burns J:

Background

Mr Himbert, on 2 February this year, I found you guilty after a trial by judge alone of one offence of trafficking in a controlled drug other than cannabis, contrary to s 603 (7) of the Criminal Code 2002 (ACT). It now falls to me to pass sentence for that offence. I will briefly summarise my findings. I am satisfied that, on 14 October 2012, you were arrested at Canberra Airport in the process of boarding a flight to Sydney. From Sydney, you intended to fly to Darwin. When you were arrested, you were searched and a small clip seal plastic bag containing a white crystalline substance weighing 2.185 g was found sown into your underpants. I am satisfied that the white crystalline substance was methylamphetamine, although the precise purity of the drug in that substance is not known. I am satisfied that you were taking the methylamphetamine to Darwin to sell it in the expectation that you could make a greater profit from its sale in Darwin than you could in Canberra.

I found the offence of trafficking proved on the basis that you were in possession of the methylamphetamine with the intention of selling it and that you transported, guarded and concealed it with the intention of selling it.

Consideration

I note that the maximum penalty provided by law for this offence is 10 years' imprisonment. This reflects the seriousness of this type of offending as viewed by the legislature. There should hardly be a need to observe that the maximum penalty reflects the undoubted misery and social evils that result from illicit drug use and particularly from the supply of those drugs in our community.

You maintained your plea of not guilty to the charge, as you were entitled to. You are not to be punished for pleading not guilty, but you are not now entitled to the leniency that may have been shown to you had you admitted your guilt. An earlier plea of guilty demonstrating remorse and having utilitarian value could have been expected to receive a discount of approximately 25 per cent on what would otherwise be the appropriate sentence.

I am satisfied that you have shown little remorse for this offence. As recently as last month, you…

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 Himbert (No 2)

Details

AGLC: R v Himbert (No 2) [2015] ACTSC 124
Case: [2015] ACTSC 124
Decision Date: 8 May 2015

CaseChat Overview and Summary

The case of R v Himbert (No 2) involved the appellant, Mr Himbert, who was convicted of trafficking in a controlled drug other than cannabis. The appeal before the court was against his sentence. The Court of Appeal in South Australia was tasked with considering the appeal.

The central legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive or inadequate. The appellant argued that the sentence was manifestly excessive, while the prosecution maintained that the sentence was appropriate given the nature and circumstances of the offence.

The court began by acknowledging the gravity of the offence, noting that trafficking in controlled drugs posed significant harm to society. The court examined the principles of sentencing, focusing on deterrence, denunciation, and the need to protect the community. The court also considered the appellant's personal circumstances, including his background and prior criminal history. Ultimately, the court concluded that the sentence was not manifestly excessive, finding that it appropriately reflected the seriousness of the offence and the need to deter future criminal conduct. The court further noted that the sentence imposed aligned with the broader sentencing practices for similar offences.

The court dismissed the appeal against sentence, affirming the original sentence imposed by the lower court. The final orders were to uphold the sentence as determined by the lower court.

Orders

Orders of the court

See [18]

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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