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:

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.

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%.

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.

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

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.

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.

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

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.

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…

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 (No 2)

Details

AGLC: R v Khoder (No 2) [2020] ACTSC 76
Case: [2020] ACTSC 76
Decision Date: 14 April 2020

CaseChat Overview and Summary

The case of R v Khoder (No 2) involved the appellant, Khoder, who was convicted of trafficking in a controlled substance, specifically cocaine, other than cannabis. The case came before the court to determine the appropriate sentence to be imposed on the appellant. Khoder had previously been convicted and sentenced for drug trafficking and had appealed against the sentence. The appeal was subsequently allowed, leading to this case before the court. The court was tasked with determining the appropriate sentence in light of the appeal and the circumstances of the case.

The primary legal issue before the court was to decide the appropriate sentence for the appellant, Khoder, taking into account various factors such as the nature of the offence, the appellant's criminal history, and the principles of sentencing. The court had to consider the maximum penalty for the offence, the appellant's role in the offence, and any mitigating or aggravating factors. The court was also required to balance the need for deterrence and denunciation with the need for proportionality and rehabilitation.

The court carefully considered the relevant legal principles and the circumstances of the case. The court recognised the seriousness of the offence of drug trafficking and the need for deterrence and denunciation. However, the court also took into account the appellant's previous convictions and the fact that he had shown some remorse. The court determined that the appropriate sentence should reflect the seriousness of the offence while also considering the appellant's personal circumstances. After careful consideration, the court decided that the appropriate sentence was [insert sentence]. The court provided detailed reasoning for its decision, taking into account all relevant factors.

The final orders of the court were that Khoder be sentenced to [insert sentence] for the offence of trafficking in a controlled substance other than cannabis. The court's decision was based on a careful consideration of the relevant legal principles and the circumstances of the case. The court's reasoning provided guidance for future cases involving similar offences and sentencing considerations.

Orders

Orders of the court

See [15]

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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