R v Low - [2021] ACTSC 285

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Low
Citation:	[2021] ACTSC 285
Hearing Date:	1 November 2021
DecisionDate:	1 November 2021
Before:	Elkaim J
Decision:	See [44]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – disputed facts – trafficking in a controlled drug other than cannabis – cocaine
Cases Cited:	R v Harmouche [2020] ACTSC 194 R v Mackinder [2021] ACTSC 176
Parties:	The Queen ( Crown) Jake Low ( Offender)
Representation:	Counsel V Conliffe ( Crown) T Sharman ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender)
File Number:	SCC 67 of 2021

ELKAIM J:

Mr Low, the offender, has pleaded guilty to one charge of trafficking in a controlled drug, namely cocaine.

The plea was entered on 23 July 2020. It followed some negotiations which resulted in the plea being accepted on the basis that the offender was “guarding or concealing the drug with the intention of helping someone else sell it – that help being limited to letting the other person conceal it in his home for future supply”.

But then the Crown changed its mind, perhaps significantly debasing the value of its agreement. It spoke to the informant but he does not seem to have taken any part of the decision. The Crown decided that it was unhappy with the basis for the plea and thought it should endeavour to increase the criminality of the offender to include a far greater involvement. This led to the disputed facts hearing in which the Crown sought to increase the offender’s involvement from concealment to playing a role in the sale of drugs and benefiting from that sale.

No satisfactory explanation was forthcoming about the Crown’s conduct. I frankly find it surprising that the Crown, having agreed to accept a plea on a certain basis, that plea having been entered, then decided to proceed on a totally different basis.

The offender was placed at risk of a greater penalty, and this risk was substantially increased by the matter being consequently transferred from the Magistrates Court to the Supreme Court.

Mr Sharman, on behalf of the offender, did not seem to share my incredulity, but rather, to his credit, proceeded on the basis of defeating the Crown’s allegations. He did however tender the email chain under which the agreement as to the plea was made. He did so as an indication that the offender’s assertion and, in fact, admissions of his involvement was long-standing and consistent.

I conducted the disputed facts hearing on the basis of the evidence put before me. No part of my decision is derived from the Crown’s conduct in reneging on its agreement as to the plea.

The facts are set out in detail in the Statement of Facts which is part of Exhibit A. The following is a summary.

On 11 May 2020, having obtained the necessary search warrants, the police went to the offender’s home. They…

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 Low

Details

AGLC: R v Low [2021] ACTSC 285
Case: [2021] ACTSC 285
Decision Date

CaseChat Overview and Summary

In the case of R v Low, the offender was convicted of trafficking in a controlled drug, specifically cocaine. The offender had entered a guilty plea based on an agreement with the Crown that he was merely concealing the drug with the intention of aiding another in its sale. However, the Crown later sought to increase the offender's culpability by alleging a more active role in the sale of the drug. This led to a hearing to determine the disputed facts of the case. The Court found that the Crown had not proven its case beyond reasonable doubt that the offender was involved in the drug trade beyond concealing the drug.

The legal issues before the Court were whether the Crown had established the disputed facts, namely the offender's greater involvement in the sale of the drug, and what sentence should be imposed on the offender. The Court considered the evidence presented and concluded that the Crown had not discharged its burden of proof. The Court found the offender's involvement to be limited to concealing the drug for another person.

In sentencing the offender, the Court considered the objective seriousness of the offence, the offender's background, and the principles of general and specific deterrence. The Court determined that an Intensive Correction Order (ICO) was an appropriate sentence, given the offender's limited criminal history, early guilty plea, and potential for rehabilitation. The Court imposed a sentence of two years and ten months, to be served by way of an ICO, with a suggestion that the offender reside with his parents during the term of the order.

The Court's decision in this case highlights the importance of the Crown meeting its burden of proof in criminal cases and the need for sentencing to be tailored to the individual offender, taking into account factors such as rehabilitation potential and the principles of deterrence. The Court's imposition of an ICO in this case demonstrates a balanced approach to sentencing, which aims to hold the offender accountable while also providing an opportunity for rehabilitation.

Orders