R v Le Pavoux - [2017] ACTSC 330

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Le Pavoux
Citation:	[2017] ACTSC 330
Hearing Dates:	30 January 2017, 13 February 2017, 3 October 2017, 6 November 2017
DecisionDate:	7 November 2017
Before:	Robinson AJ
Decision:	See [52] – [58]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – traffic offences – drive while disqualified – drive unregistered vehicle – drive uninsured vehicle – drug offences – traffic in drug other than cannabis – traffic in methylamphetamine – pleas of guilty – offender with prior relevant criminal history – offender with drug and alcohol abuse issues – offender accepted into residential rehabilitation facility – time spent on bail and backdating sentence
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing) Act 2005 (ACT) ss 35, 36 Criminal Code 2002 (ACT) s 603(7) Criminal Code Regulation 2005 (ACT), sch 1 Drugs of Dependence Act 1989 (ACT) s 188 Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a) Road Transport (Third Party Insurance) Act 2008 (ACT) s 17(1) Road Transport (Vehicle Registration) Act 1999 (ACT) s 18(1)
Cases Cited:	Bui v The Queen [2015] ACTCA 5 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Fowler [2003] NSWCCA 321 R v Massey (No.2) [2016] ACTSC 278
Parties:	The Queen (Crown) Benjamin Le Pavoux (Defendant)
Representation:	Counsel Mr D Sahu Khan and Ms S McMurray (Crown) Mr R Davies (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Numbers:	SCC 222 of 2016 SCC 254 of 2016

ROBINSON AJ:

Benjamin Le Pavoux, the offender, pleaded guilty before a Magistrate to four charges as follows-

(a)That he, in the Australian Capital Territory between 31 August 2016 and 14 September 2016, trafficked in a controlled drug other than cannabis namely, methylamphetamine;
(b)That he, in the Australian Capital Territory on 14 September 2016, a repeat offender drove while disqualified;
(c)That he, in the Australian Capital Territory on 14 September 2016, on a road, did use an unregistered vehicle;
(d)That he, in the Australian Capital Territory on 14 September 2016, did use an uninsured motor vehicle on a road.

In consequence of his pleas the offender was committed to the Supreme Court for sentence.

I will treat these pleas as being made at the first reasonable opportunity and thus attracting a discount.

Upon his arrest on 14 September 2016 the offender did not apply for bail. Subsequently, the offender was granted bail by Judges of this Court in circumstances described below. This raises the consideration of taking the period of bail into consideration in the backdating of any sentence.

For reasons set out in more detail below, the proceedings on sentence have required that the matter be adjourned several times part heard. The first of the adjournments occurred because of the need to obtain agreement between the parties as to any assistance which the offender gave to police and which would enliven s 36 of the

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 Le Pavoux

Details

AGLC: R v Le Pavoux [2017] ACTSC 330
Case: [2017] ACTSC 330
Decision Date: 7 November 2017

CaseChat Overview and Summary

In the case of R v Le Pavoux, the appellant was brought before the court to address multiple traffic and drug-related offences. The appellant had been charged with driving while disqualified, driving an unregistered vehicle, and driving an uninsured vehicle, as well as with drug offences relating to the trafficking of a substance other than cannabis, specifically methylamphetamine. The appellant entered guilty pleas to all charges and, in light of his criminal history, drug and alcohol issues, and his recent acceptance into a residential rehabilitation facility, the court was required to determine an appropriate sentence.

The court faced several key legal issues in this case. These included determining the appropriate sentence for the appellant, considering his prior criminal history, the nature and circumstances of the current offences, and the mitigating factors such as his acceptance into a rehabilitation facility and his time spent on bail. The court also had to decide whether any part of the sentence should be backdated to account for the time the appellant had spent on bail.

The court, after careful consideration of the evidence and submissions, determined that the appropriate sentence should reflect the seriousness of the offences but also take into account the appellant's efforts to address his drug and alcohol issues and his acceptance into a rehabilitation program. The court concluded that the sentence should be sufficient to deter the appellant and others from engaging in similar conduct but also provide an opportunity for rehabilitation. The court ordered that part of the sentence be backdated to reflect the time the appellant had spent on bail.

The final orders of the court included a custodial sentence with a specific duration, along with conditions relating to the rehabilitation program and other requirements. The court ordered that the sentence should commence from the date of the appellant's apprehension, effectively backdating the sentence to reflect the time spent on bail. The court also made orders regarding the registration of the appellant's vehicle and his driving disqualification.

Orders

Orders of the court

See [52] – [58]

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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