R v Malakouti

Case [2018] SASCFC 115

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MALAKOUTI

[2018] SASCFC 115

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)

5 November 2018

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

Appeal against conviction and sentence following a conviction by a trial by jury of one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The appellant was sentenced to five years and 11 months imprisonment with a non-parole period of three years and 11 months.

The appellant was found by police standing next to his BMW vehicle in a suburban street in Prospect late at night. He was in the company of another man, T, who lived in a nearby apartment. A sandwich bag containing 9.82 grams of an admixture, of which 7.73 grams was pure crystalline methylamphetamine, was found in the front yard of a house close to where a police officer had directed the appellant and T to remain. The value of the methylamphetamine was between $3,450 and $5,050.

On appeal, the appellant relied on the grounds that the Judge did not adequately direct the jury on what was required to prove possession and sale, that the Judge failed to direct the jury that, to find the appellant guilty, they had to be unanimously agreed, and that the verdict was unsafe and unsatisfactory. In relation to the appeal against sentence, the appellant contended that the sentence was manifestly excessive.

Held, per Kourakis CJ (Nicholson and Hinton JJ agreeing), dismissing the appeal against conviction and sentence:

1.  The position of the prosecution and defence case was such that any juror who was not satisfied that the appellant had sold the methylamphetamine to T, but nevertheless found him guilty, must have been satisfied that the appellant possessed the methylamphetamine for the purposes of sale at some point before the police arrived (at [28] and [30]). 

2.  The resolution of the issue of possession depended on whether the jury were satisfied that the appellant was the ‘dealer’ who had brought the sandwich bag with him in his BMW. For the purpose of resolving that issue, the Judge’s directions on possession were sufficient (at [38]).

3.  There being no positive obligation to identify a deduction from a notional starting point for home detention bail, the Judge’s reasons were adequate (at [54]).

4.  The sentence was within the range of the sentence for offending of this kind, having regard to the appellant’s personal circumstances and relevant factors, including his prior conviction for trafficking in methylamphetamine (at [10], [64]-[65]).

Controlled Substances Act 1984 (SA);

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AGLC
R v Malakouti [2018] SASCFC 115
Case
[2018] SASCFC 115
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction and sentence imposed on the appellant, Mr Malakouti, in the District Court of South Australia. The dispute arose from charges related to drug trafficking. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Nicholson and Hinton JJ.

The legal issues before the Full Court were whether the appellant's conviction was unsafe or unsatisfactory, and whether the sentence imposed was manifestly excessive. The prosecution's case was that the appellant was involved in the supply of methylamphetamine, evidenced by cash, packaging materials, a "tick list" notebook, and his DNA found on a bag containing methylamphetamine. The defence contended that the evidence did not establish the appellant's possession of the drug.

The Full Court dismissed the appeal against conviction, finding that the evidence, including the appellant's DNA on the bag, the presence of packaging materials, cash, and the "tick list," was sufficient to support the jury's verdict. Regarding the sentence, the Court noted that the appellant's primary motivation appeared to be commercial gain rather than addiction, and that the sentence was within the appropriate range for such offending, taking into account his personal circumstances and a prior conviction for trafficking methylamphetamine.

Consequently, the Full Court ordered that both the appeal against conviction and the appeal against sentence be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would also dismiss the appeal against sentence. The material showed that the appellant was not heavily addicted to methylamphetamine. His primary motivation was commercial gain. The sentence was within the range of the sentences for offending of this kind, having regard to the appellant’s personal circumstances, including his prior conviction for trafficking in methylamphetamine.The evidence At about 10.50 pm on 27 March 2015, a police officer, Constable Boyd, drove his marked police car down Devonport Terrace, Prospect. He saw the appellant standing at the driver’s side of the appellant’s BMW, and stopped to speak with him. A short time later, Constable Boyd heard the sound of rustling coming from bushes growing alongside a railway line on the opposite side of Devonport Terrace. He found T there. Constable Boyd asked both men to stand on the driveway of a house next door to T’s apartment. Constable Boyd found a small plastic bag containing a small amount of a substance which he believed to be methylamphetamine on the driveway. Both T and the appellant denied possession of the bag. That substance was not the subject of a charge. The appellant was then searched, after which he and T sat down close together next to a garden bed in front of one of the houses on the street. Constable Boyd called other police to assist him. When they arrived, they located the sandwich bag about one metre to the left of where T was sitting, and close to two metres from the appellant. The prosecution also adduced evidence that:·$1,620 in cash was found on the appellant at the time of his arrest;·a small, empty, re-sealable plastic bag was found tucked under the appellant’s belt when he was first searched; ·two small plastic containers of a size and type commonly used to package methylamphetamine were found in the appellant’s BMW;·$4,900 was found in a safe in the appellant’s Ridleyton home;·two notebooks were found in the appellant’s BMW, which contained entries consistent with what is colloquially known as a ‘tick list’, being a running account of supply, payment and credit commonly kept by dealers in methylamphetamine; ·an entry in the notebooks alongside the name ‘R’, which was T’s first name, recorded significant sales; ·no pipes or other implements for consuming methylamphetamine were found in the appellant’s BMW or his bedroom; and·the appellant’s DNA was found on the sandwich bag. The prosecution evidence also showed that: ·T used methylamphetamine and had possibly traded in it;·when T was searched, a vial containing .06 grams of an admixture of cocaine and methylamphetamine was found;·police located a number of press-sealed plastic bags on a coffee table in T’s apartment, commonly referred to as ‘J-bags’;·pipes suitable for smoking methylamphetamine were found in T’s apartment;·there was no evidence of drug dealing on T’s phone; and·T’s DNA was also found on the sandwich bag.The prosecution and defence cases

Decision

Reasons for decision

The sentence was not manifestly excessive.Conclusion For the reasons I have now given, I would dismiss both the appeal against conviction and the appeal against sentence. NICHOLSON J: I agree that both the appeal against conviction and the appeal against sentence should be dismissed. I agree with the reasons of the Chief Justice. HINTON J: I agree with Kourakis CJ for the reasons he gives that both the appellant’s appeal against conviction and appeal against sentence should be dismissed.

Ratio Decidendi

Legal Principle Established

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