R v Khoder (No 2)

[2020] ACTSC 76

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Khoder (No 2)

Citation:

[2020] ACTSC 76

Hearing Date:

14 April 2020  

DecisionDate:

14 April 2020

Before:

Elkaim J

Decision:

See [15]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in controlled substance other than cannabis

Legislation Cited:

Criminal Code 2002 (ACT) s 603(7)

Cases Cited:

R v Khoder [2019] ACTSC 204

Parties:

The Queen (Crown)

Khaled Khoder (Offender)

Representation:

Counsel

M Dyason (Crown)

B Shelton (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson (Offender)

File Number:

SCC 61 of 2020

ELKAIM J:

1. On 24 March 2020 the offender entered a plea of guilty to 1 count of trafficking in a controlled drug other than cannabis (CAN2020/538), contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment, a fine of $160,000 or both. On the same date the offender was committed to the Supreme Court for sentencing.

1. The offender is entitled to a discount for his plea of guilty. Although the Crown case would have been very strong there is nevertheless a utilitarian value in the avoidance of a trial. I assess the discount at 20%.

1. The brief facts of the offence are as follows: On 22 May 2019 the police arrested the offender for certain offences. On 23 May 2019 the offender was taken to a police station where he was told that he would need to be strip searched. Rather than face this daunting prospect he told the police that he wished to make a declaration. He then produced from within his underwear a plastic bag containing a crystallised substance.

1. Later analysis of the substance revealed it to be 13.179g of methylamphetamine with a purity of 79%.

1. On 6 August 2019 I sentenced the offender for 3 drug offences. He received a total term of imprisonment of 2 years, 5 months and 29 days with a nonparole period of 16 months.

1. In my sentencing remarks (R v Khoder [2019] ACTSC 204) I described his background and various subjective features. I took issue with a submission from the Crown that he had poor prospects of rehabilitation. Were it not for the fact that the current offence had already been committed I would have indicated a change of opinion. In fact, nothing has changed because he has been in custody since he was sentenced.

1. I rely on my previous sentencing remarks as if they were part of these reasons.

1. A trafficable quantity of methylamphetamine is six grams. The offender therefore had just over double this quantity, rendering the offence, I think, of just below medium objective seriousness.

1. The offender is still serving the term of imprisonment I imposed in August last year. The nonparole period will end on 21 September 2020. I do not think it appropriate to simply add a sentence for the current offence to the end of the term he is serving (which finishes on 19 November 2021).

1. I asked the Crown why this offence had not been included for sentencing on 6 August 2019. The Crown said that it was most likely due to some technical difficulties in obtaining appropriate certificates and fairly, and appropriately, conceded that had it been included it would most likely have formed part of a ‘rolled-up’ offence within Count 1. Continuing with its fair approach, the Crown accepted that there should be a good deal of concurrency in any sentence I impose today.

1. The Crown did however take issue with the offender’s suggestion that there should be no increase to the nonparole period, the Crown’s point being that there should be some specific denunciation of this criminal conduct.

1. The offender’s submission arose from his description of current conditions in prison. He pointed out that, because of the COVID-19 crisis, visitors were no longer permitted, restrictions had been placed on his capacity to be religiously observant and two of his rehabilitation programs had been cancelled. Although the first two factors are important, I regard the interference with his rehabilitation as being particularly significant. As already mentioned I previously regarded the offender to be a good candidate for rehabilitation, so that the current restrictions may have a deleterious effect on the good work he has achieved so far.

1. At the same time, I also agree with the Crown that the current offence should be recognised both with an extension of the head sentence and with an extension of the nonparole period, although perhaps not to the extent envisaged by the Crown.

1. There are some breaches of Good Behaviour Orders to be dealt with. The Crown however did not wish to be heard against a suggestion that I take no further action on the breaches.

1. I make the following orders:

(a)For trafficking in a controlled drug other than cannabis (CAN2020/538), the offender is sentenced to 10 months’ imprisonment (reduced from 12 months for the discount) to commence on 19 April 2021 and end on 18 February 2022.

(b)I reset the nonparole period previously imposed so that it is for a duration of 17 months commencing on 22 May 2019 and ending on 21 October 2020.

(c)No further action is taken on the breaches of Good Behaviour Orders.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.

Associate:

Date: 14 April 2020