R v Mazaydeh - [2018] ACTSC 308

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mazaydeh
Citation:	[2018] ACTSC 308
Hearing Date:	26 October 2018
DecisionDate:	26 October 2018
Before:	Mossop J
Decision:	See [12]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – possession of drug of dependence, namely cocaine, for sale or supply to another person – plea of guilty – negligible criminal history – young offender with a good work history – well‑connected to family and the community – low risk of reoffending – positive prospects of living a law-abiding life – good behaviour order with a community service condition and a fine imposed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), s 603(7) Drugs of Dependence Act 1989 (ACT), s 164(2)
Cases Cited:	Bui v The Queen [2015] ACTCA 5
Parties:	The Queen (Crown) Maen Mazaydeh (Offender)
Representation:	Counsel P Burgoyne-Scutts (Crown) S McLaughlin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 348 of 2017

MOSSOP J:

Introduction

Maen Mazaydeh has pleaded guilty to a single charge that on 20 August 2017 he possessed a drug of dependence, namely cocaine, for the purpose of sale or supply to another person. That is an offence against s 164(2) of the Drugs of Dependence Act 1989 (ACT). The maximum penalty is 500 penalty units which corresponds to $75,000 or imprisonment for 5 years or both.

Facts

On 20 August 2017, police were called to the Burbury Apartments in Barton in response to a report that a person had attempted to enter or had forced entry into one of the rooms. Police arrived at the location. They were taken to the room. They entered the room lawfully and found four men sitting at a table. One of the men who had requested police attendance had blood on his nose. The Statement of Facts does not disclose the relationship between these men or whether, in fact, there had been any forced entry into the premises. Police observed evidence of drug use and conducted a lawful search of the premises under the Drugs of Dependence Act. Police found some drug related items. Police conducted searches of all four men. While searching the offender, police found a clear plastic bag that contained 14 small clip seal bags, which contained a total of 11.692g of a mixture of cocaine and norcocaine (hereafter referred to as cocaine).

Objective seriousness

The offence created by s 164(2) of the Drugs of Dependence Act 1989 covers selling, supplying or participating in the sale or supply of a drug of dependence, as well as possession for that purpose. In the present case, the offender had 14 clip seal bags of cocaine. I was told, without objection, that the offender possessed that cocaine for the purposes of supplying to the other men in the room. Possession is less objectively serious than sale. Considering the various factors referred to in Bui v The Queen

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 Mazaydeh

Details

AGLC: R v Mazaydeh [2018] ACTSC 308
Case: [2018] ACTSC 308
Decision Date: 26 October 2018

CaseChat Overview and Summary

The case of R v Mazaydeh involved the defendant, Mazaydeh, who pleaded guilty to possessing a drug of dependence, specifically cocaine, with the intent to sell or supply it to another person. The matter was heard in the relevant court where the focus was on determining the appropriate sentence for the offence, given the defendant's personal circumstances and the nature of the offence. Mazaydeh had a negligible criminal history, a commendable work record, strong family and community ties, and a low risk of reoffending. These factors were taken into account during the sentencing process.

The primary legal issue before the court was to determine the appropriate sentence for Mazaydeh, considering his plea of guilty, negligible criminal history, positive personal attributes, and the likelihood of rehabilitation. The court had to balance the need for deterrence and denunciation with the potential for rehabilitation, taking into account the defendant's age, employment, and community connections. The court also had to decide on the imposition of a good behaviour order, community service, and a fine as part of the sentencing.

The court, in reaching its decision, carefully considered the mitigating factors presented, including Mazaydeh's negligible criminal history, his positive work history, and the strong support from his family and community. The court also noted the low risk of reoffending and the potential for Mazaydeh to lead a law-abiding life in the future. Weighing these factors, the court decided to impose a good behaviour order, a community service condition, and a fine, in addition to the guilty plea, to ensure that the sentence was both punitive and rehabilitative. This approach aimed to address the offence's seriousness while also supporting the defendant's prospects for future rehabilitation.

The court ordered that Mazaydeh be subject to a good behaviour order, perform community service, and pay a fine. These measures were intended to provide both a punitive and rehabilitative response to the offence, considering the mitigating factors presented. The court's decision reflected a balanced approach that aimed to address the offence's seriousness while also supporting the defendant's potential for rehabilitation and future lawfulness.

Orders

Orders of the court

See [12]

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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