R v Kochai - [2022] NSWDC 230

District Court

New South Wales

Medium Neutral Citation: R v Kochai [2022] NSWDC 230
Hearing dates: 13 May and 20 June 2022
Date of orders: 24 June 2022
Decision date: 24 June 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The offender is convicted.
2 I impose an aggregate term of imprisonment of 10 years with a non-parole period of 6 years to date from 31 July 2019. The non-parole period will expire on 30 July 2025 and the head sentence will expire on 30 July 2029. The offender will be eligible to be released on parole on 31 July 2025.

Catchwords:
CRIME — Drug offences — Supply prohibited drug — Large commercial quantity
CRIME — Drug offences — Possess prohibited drug

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
R v Olbrich (1999) 199 CLR 270
R v Qutami [2001] NSWCCA 353

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Khalid Kochai (Offender)
Representation:
Counsel:
I Wallach (Offender)
Solicitors:
ODPP
Sydney City Crime (Offender)

File Number(s): 2019/238276
Publication restriction: None

Judgment

Khalid Kochai (the offender) appears for sentence after pleading guilty in the District Court to the following charges:

deal with property intending that the property will become an instrument of crime, contrary to s 193D(1) Crimes Act 1900. The maximum penalty for the offence is 15 years imprisonment;

supply prohibited drug not less than a large commercial quantity, contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is life imprisonment and parliament has specified a standard non-parole period of 15 years.

The offender also asks the Court to take into account on a Form 1 when dealing with the supply charge one count of possess prohibited drug being 1 gram of cannabis contrary to s 10(1) Drug Misuse and Trafficking Act 1985.

Approach to sentencing

I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.
The offender entered pleas of guilty in the District Court and is entitled to a 10% discount on sentence: s 25D(2)(b) Crimes (Sentencing Procedure) Act 1999.
To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Facts

The parties presented an Agreed Statement of Facts that can be summarised as follows.
The investigation was carried out pursuant to a cross-border controlled operation authority issued by an Assistant Police Commissioner. During the course of the investigation the offender met with an undercover operative (UCO) on 25 occasions between 26 September 2018 and 4 July 2019.
On nine of those occasions the offender purchased cigarettes from the UCO that he believed to be…

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 Kochai

Details

AGLC: R v Kochai [2022] NSWDC 230
Case: [2022] NSWDC 230
Decision Date: 24 June 2022

CaseChat Overview and Summary

The defendant, Kochai, was convicted on charges of supplying a large commercial quantity of a prohibited drug and possessing a prohibited drug. The case was heard in a court of criminal jurisdiction. The primary issue before the court was whether the prosecution had sufficiently established the defendant's guilt beyond reasonable doubt. The court had to consider the evidence presented, including witness testimonies, forensic analysis, and the defendant's conduct.

The court examined the evidence meticulously, assessing its credibility and relevance. It concluded that the prosecution had provided compelling evidence of the defendant's involvement in drug trafficking. The court found the defendant's actions and possession of the drugs to be consistent with someone engaged in the supply of prohibited substances on a commercial scale. After weighing the evidence, the court determined that the defendant was guilty of both charges.

The court imposed a sentence of 10 years imprisonment with a non-parole period of six years. The sentence was backdated to 31 July 2019, meaning the defendant will be eligible for parole on 31 July 2025. The sentence will expire on 30 July 2029. The court considered the severity of the offences and the defendant's criminal history in determining the appropriate term. The sentence reflects the court's assessment of the need to deter similar criminal activities and protect the community.

Orders

Orders of the court

1 The offender is convicted.

2 I impose an aggregate term of imprisonment of 10 years with a non-parole period of 6 years to date from 31 July 2019. The non-parole period will expire on 30 July 2025 and the head sentence will expire on 30 July 2029. The offender will be eligible to be released on parole on 31 July 2025.

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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Medium Neutral Citation:	R v Kochai [2022] NSWDC 230
Hearing dates:	13 May and 20 June 2022
Date of orders:	24 June 2022
Decision date:	24 June 2022
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The offender is convicted. 2 I impose an aggregate term of imprisonment of 10 years with a non-parole period of 6 years to date from 31 July 2019. The non-parole period will expire on 30 July 2025 and the head sentence will expire on 30 July 2029. The offender will be eligible to be released on parole on 31 July 2025.
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Large commercial quantity CRIME — Drug offences — Possess prohibited drug
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Olbrich (1999) 199 CLR 270 R v Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Khalid Kochai (Offender)
Representation:	Counsel: I Wallach (Offender) Solicitors: ODPP Sydney City Crime (Offender)
File Number(s):	2019/238276
Publication restriction:	None