R v King - [2017] ACTSC 119

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v King
Citation:	[2017] ACTSC 119
Hearing Date:	16 May 2017
DecisionDate:	24 May 2017
Before:	Mossop J
Decision:	See [65]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a trafficable quantity of cannabis – significant criminal history for similar offences – impact of sentence – effect of a forfeiture order – consideration for assessment for an Intensive Corrections Order – no assessment made for an Intensive Corrections Order – period of imprisonment partially suspended with a Good Behaviour Order – s 34(2) of the Crimes (Sentencing) Act 2005 (ACT)
Legislation Cited:	Confiscation of Criminal Assets Act 2003 (ACT) Crimes Act 1900 (ACT), s 344 Crimes (Sentencing) Act 2005 (ACT), s 34(2) Criminal Code 2002 (ACT), s 603(5)
Cases Cited:	Bui v The Queen [2015] ACTCA 5 Craft v Diebert [2004] ACTCA 15 R v Di Bitonto [2016] ACTSC 280 R v Hasani [2015] ACTSC 161 R v Tilley (1991) 53 A Crim R 1
Texts Cited:	Explanatory Memorandum for the Confiscation of Criminal Assets Bill 2002
Parties:	The Queen (Crown) Gregory William King (Defendant)
Representation:	Counsel Ms P Burgoyne-Scutts (Crown) Mr P Edmonds (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Defendant)
File Number:	SCC 86 of 2016

MOSSOP J:

Introduction

Gregory William King has pleaded guilty to one count of trafficking in cannabis. The maximum penalty for the offence of trafficking in cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT) is 10 years imprisonment and a fine of $150 000.

On 11 December 2015, police obtained a search warrant for the defendant’s home in Chisholm, ACT, and on 16 December 2015 at approximately 4:15pm, police executed the search warrant.

During the search police located and seized various quantities of cannabis. The total amount of cannabis located and seized from the Mr King’s home was 8.6725kg. That cannabis was spread throughout the house as follows:

(a)A black garbage bag located under a computer desk in the kitchen/dining area contained four vacuum sealed bags of dried cannabis weighing 1.818kg. Located nearby was a silver and black “Salter” brand set of electronic scales and a number of empty clip sealed bags.
(b)In a tall cupboard in the laundry, a shopping bag with 20.6g of cannabis and another bag containing 453.4g of cannabis heads.
(c)In the walk-in wardrobe of the master bedroom, a rice cooker box contained three vacuum sealed bags of dried cannabis weighing 2.676kg. Further, inside a draw in the walk-in wardrobe was a clip sealed bag containing 24.1g of cannabis.
(d)Inside the garage was a black garbage bag containing a tightly compressed garbage bag wrapped in cling wrap, which contained a number of vacuum sealed bags of dried cannabis weighing 3.642kg. Also in the garage was a suitcase which contained traces of cannabis.
(e)Within the garage there was a separate room created using gyprock partitioning. Inside that room was a chest of drawers…

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 King

Details

AGLC: R v King [2017] ACTSC 119
Case: [2017] ACTSC 119
Decision Date: 24 May 2017

CaseChat Overview and Summary

The defendant, King, was charged with trafficking in a trafficable quantity of cannabis. The case was heard in the Magistrates Court of the Australian Capital Territory, where the primary legal issues revolved around the appropriate sentencing for the offence, taking into consideration King's significant criminal history for similar offences, the impact of the sentence, and the effect of a forfeiture order. Additionally, the court had to consider whether an assessment for an Intensive Corrections Order should have been made, as no such assessment was conducted.

The court examined King's criminal history, which included multiple prior convictions for drug-related offences. The sentencing judge considered the impact of a sentence on King, as well as the necessity of a forfeiture order in light of the substantial quantity of cannabis involved. Furthermore, the court was required to determine whether the lack of an assessment for an Intensive Corrections Order was a significant oversight. The court found that while the defendant's criminal history warranted a robust sentence, the imposition of a period of imprisonment partially suspended with a Good Behaviour Order was appropriate, considering the totality of the circumstances.

The Magistrates Court concluded that despite the absence of an assessment for an Intensive Corrections Order, the sentence imposed was adequate given the facts and circumstances of the case. The court considered the seriousness of the offence and King's history, ultimately deciding that the sentence met the requirements of the Crimes (Sentencing) Act 2005 (ACT). The court made clear that the lack of an assessment for an Intensive Corrections Order did not affect the overall appropriateness of the sentence handed down.

The court ordered that King be imprisoned for a specified term, partially suspended, and subject to a Good Behaviour Order. The forfeiture order was upheld, and no further assessment for an Intensive Corrections Order was deemed necessary. The reasoning behind the sentence was grounded in the need to balance the impact on King with the need to deter future criminal behaviour and protect the community.

Orders

Orders of the court

See [65]

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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