R v Khoder - [2019] ACTSC 204

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Khoder
Citation:	[2019] ACTSC 204
Hearing Date:	6 August 2019
DecisionDate:	6 August 2019
Before:	Elkaim J
Decision:	See [24]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Traffic in controlled drug other than cannabis – guilty plea – prospects for rehabilitation
Legislation Cited:	Criminal Code 2002 (ACT) s 603(7) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 Magistrates Court Act 1930 (ACT) s 90A
Cases Cited:	R v Brown [2019] ACTSC 59 R v Cekic [2016] SASCFC 26 R v Clark [2019] ACTSC 147 R v Huat Phay [2015] ACTSC 238 R v Pishdari & Anor [2018] SASCFC 94 R v Tran [2014] ACTSC 368
Parties:	The Queen (Crown) Khaled Khoder (Offender)
Representation:	Counsel S Jerome (Crown) B Shelton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender)
File Number:	SCC 146 of 2019

ELKAIM J:

On 20 June 2019, the offender entered a plea of guilty in the Magistrates Court to three charges of trafficking in a controlled drug other than cannabis namely methylamphetamine, methylenedioxymethamphetamine (MDMA) and cocaine.

These matters were committed to the Supreme Court for sentence on the same day pursuant to s 90A of the Magistrates Court Act 1930 (ACT). Each charge is an offence contrary to s 603(7) of the Criminal Code 2002 (ACT) carrying a maximum penalty of 10 years’ imprisonment, a fine of $160,000, or both.

On 1 August 2019 an indictment was filed in this court, dated 31 July 2019. The offender was arraigned on this indictment this morning and confirmed his plea of guilty to all three counts. The counts in the indictment mirror the matters to which he pleaded guilty in the Magistrates Court, the only difference is an amendment to the dates the offences are said to have been committed.

The offender was born in Sydney in 1991. His parents separated when he was 16 years of age. He has a step sibling but has no contact with this person. After a period of strained relations he now has an amicable relationship with his father. He is close to his mother who is his main support.

The offender left school during Year 11. This seems to be when he started to use illicit drugs. He did however start a bricklaying apprenticeship, but did not complete it. He has since become a qualified plumber but does not have a stable work history. He apparently had a good job leading up to him being taken into custody in May 2019. He hopes to return to the same employment.

Unfortunately the offender has had some associations with an outlaw motorcycle club and he has a drug debt of over $25,000. It is not clear if he has left or remains a club member. It will be vital for him to disassociate himself from gangs and drugs.

The offender was once a promising rugby league player but his…

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 Khoder

Details

AGLC: R v Khoder [2019] ACTSC 204
Case: [2019] ACTSC 204
Decision Date: 6 August 2019

CaseChat Overview and Summary

In the case of R v Khoder, the defendant faced charges related to the trafficking of a controlled drug other than cannabis. The court was tasked with determining an appropriate sentence following the defendant's guilty plea. The legal issues centred on the principles of sentencing for drug trafficking, particularly considering the defendant's guilty plea and prospects for rehabilitation. The court had to weigh these factors against the severity of the offence and the impact of drug trafficking on the community.

The court considered the defendant's guilty plea as a mitigating factor, acknowledging it as a significant step towards accountability and acceptance of responsibility. However, it also had to address the gravity of the offence, which involved trafficking in a controlled drug, highlighting the harm such activities can cause to society. The court evaluated the defendant's prospects for rehabilitation, including their background, the potential for reform, and the likelihood of reoffending. These factors were crucial in determining a sentence that balanced punishment with the aim of rehabilitating the offender.

After thorough deliberation, the court decided that the defendant should receive a sentence that reflected the seriousness of the crime while also considering the mitigating factors of the plea and rehabilitation prospects. The court aimed to deter future drug trafficking activities while providing the defendant with an opportunity for rehabilitation. The final orders were made, taking into account the specific circumstances of the case and the principles of justice and public safety.

Orders

Orders of the court

See [24]

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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