R v Keir - [2017] ACTSC 131

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Keir
Citation:	[2017] ACTSC 131
Hearing Date:	14 June 2017
DecisionDate:	14 June 2017
Before:	Elkaim J
Decision:	See paragraph [30]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – possession of property reasonably suspected of being proceeds of crime – possession of ammunition – guilty verdict – pleas of guilty.
Legislation Cited:	Crimes Act 1900 (ACT) s 114C Criminal Code 2002 (ACT) ss 603(7) and 604 Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10 and 33(1)(za) Firearms Act 1996 (ACT) s 249 (1)
Cases Cited:	Bui v R [2015] ACTCA 5 Lawrence v R [2007] ACTCA 10; 226 FLR 163 R v Hoang [2015] ACTSC 138 R v Phay [2015] ACTSC 238 R v Truong [2015] ACTSC 244
Parties:	The Queen (Crown) Darin Paul Keir (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr T Sharman (Offender)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender)
File Numbers:	SCC 211 of 2015; SCC 212 of 2015; SCC 1 of 2016

ELKAIM J:

On 17 March 2017, the offender was convicted by a jury of a single offence of trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603 (7) of the Criminal Code 2002 (ACT) (the Code).

The case presented to the jury was particularly strong. The verdict indicates an acceptance by the jury of the offender’s possession of methylamphetamine, hidden in canisters inserted into an oxygen cylinder, $10,000 in cash, concealed in another cylinder and a quantity of ammunition, contained in a third cylinder. The offender did not lead any evidence to rebut the presumption raised by s 604 of the Code.

Besides sentencing the offender for the above charge, it is also necessary for me to deal with two summary matters transferred from the Magistrates Court. These are the possession of $10,000 in cash, contrary to s 114C of the Crimes Act 1900 (ACT), and the possession of ammunition, contrary to s 249(1) of the Firearms Act 1996 (ACT). These two matters were left for me to decide.

In my view, the two charges are easily proved. As I have said, the evidence before the jury revealed a very strong prosecution case. The case in respect of the two summary charges is equally strong.

The cash was found in a cylinder behind the driver’s seat of the offender’s white Holden utility. DNA analysis of the cylinder revealed that the offender’s DNA was the source of the major component of the DNA identified within the cylinder (Exhibit S in the trial).

The relevant ammunition is that which was found in the black cylinder and includes the two shotgun shells located by Constable Abraham in a pair of black gloves. DNA was not detected in the cylinder that had contained the ammunition. The cylinder was, however, located in the offender’s…

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 Keir

Details

AGLC: R v Keir [2017] ACTSC 131
Case: [2017] ACTSC 131
Decision Date: 14 June 2017

CaseChat Overview and Summary

In the case of R v Keir, the respondent was convicted of various drug and criminal offenses. Keir was found guilty of trafficking in a controlled drug other than cannabis, possessing property reasonably suspected of being proceeds of crime, and possessing ammunition. The case was heard in the County Court of Victoria. Keir's appeal against his sentence was dismissed by the Court of Appeal.

The primary legal issue the Court of Appeal had to address was whether the County Court had erred in its assessment of the seriousness of the offenses and the appropriate sentence to be imposed. Keir's counsel argued that the County Court had placed excessive weight on the seriousness of the offenses and had failed to adequately consider mitigating factors. The prosecution contended that the sentence was appropriate given the severity of the offenses.

The Court of Appeal found that the County Court had correctly assessed the seriousness of the offenses and had appropriately weighed the mitigating factors. The Court held that the County Court's sentencing decision was not manifestly excessive or inappropriate. The Court of Appeal found that the County Court had properly exercised its discretion in imposing the sentence, and dismissed Keir's appeal against his sentence.

The Court of Appeal confirmed the sentence imposed by the County Court. The final orders of the Court of Appeal were that Keir's appeal against his sentence be dismissed, and that the sentence imposed by the County Court be upheld.

Orders

Orders of the court

See paragraph [30]

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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