R v Meksavanh - [2022] NSWDC 374

District Court

New South Wales

Medium Neutral Citation: R v Meksavanh [2022] NSWDC 374
Hearing dates: 5 August 2022
Date of orders: 5 August 2022
Decision date: 05 August 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The offender is convicted.
2 The offender is sentenced to imprisonment for 6 years to date from 9 September 2020 and expiring on 8 September 2026. I fix a non-parole period of 3 years to date from 9 September 2020 and expiring on 8 September 2023.

Catchwords:
CRIME — Drug offences — Commonwealth offences
SENTENCING - objective seriousness - deterrence - appropriate penalty

Legislation Cited:
Crimes Act 1914

Cases Cited:
Cameron v The Queen (2002) 209 CLR 339
Danial v R [2008] NSWCCA 15
Johnson v The Queen (2004) 78 ALJR 616
R v El Karhani (1990) 21 NSWLR 370
R v Nguyen (2010) 205 A Crim R 106
R v Olbrich (1999) 199 CLR 270

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions Souknelane Meksavanh (Offender)
Representation: Counsel:
D Berents (CDPP)
J Clarke (Offender)

File Number(s): 2020/262841
Publication restriction: None

Judgment

Souknelane Meksavanh appears for sentence after pleading guilty in the District Court to one count of aid and abet in an attempt to possess a commercial quantity of a border controlled drug, being 288.44 kgs of methamphetamine contrary to ss 11.1(1) and 307.5(1) and 11.2(1) of the Criminal Code (Cth).
The maximum penalty for the offence is life imprisonment and/or a fine of 7,500 penalty units.

Approach to Sentencing

I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.
A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].
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).
The offender has entered a plea of guilty. For Commonwealth offences the Court must consider the offender’s willingness to facilitate the course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender…

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 Meksavanh

Details

AGLC: R v Meksavanh [2022] NSWDC 374
Case: [2022] NSWDC 374
Decision Date: 05 August 2022

CaseChat Overview and Summary

The matter before the court involved an individual charged with offences under the Commonwealth's drug laws. The accused, Meksavanh, was brought before the court on allegations of involvement in the trafficking of prohibited substances. The case was heard in the court of first instance, which is empowered to deal with serious criminal matters.

The primary legal issues the court had to address were the objective seriousness of the offence, the need for deterrence, and the determination of an appropriate penalty. The court needed to consider the nature and extent of the accused's involvement in the drug trafficking activities, as well as the broader societal implications of such criminal conduct. The court was also tasked with balancing the need to impose a penalty that reflects the gravity of the offence against the potential for rehabilitation of the offender.

In delivering the judgment, the court emphasised the significant harm caused by drug trafficking, highlighting the detrimental effects on individuals and communities. The court found that the objective seriousness of the offence warranted a substantial penalty. After considering various sentencing principles and factors, including the accused's background and the likelihood of rehabilitation, the court determined that a custodial sentence was necessary. The court sentenced the accused to imprisonment for a period of six years, with a non-parole period set at three years. This sentence was intended to provide both a punitive response to the crime and an opportunity for the offender to reflect and potentially reform.

The court's final orders were that the offender be convicted and sentenced to imprisonment for six years, with a non-parole period of three years. The sentence was to commence on 9 September 2020 and expire on 8 September 2026, with the non-parole period ending on 8 September 2023. This decision reflects the court's balanced approach to sentencing, aiming to address both the need for punishment and the potential for the offender's rehabilitation.

Orders

Orders of the court

1 The offender is convicted.

2 The offender is sentenced to imprisonment for 6 years to date from 9 September 2020 and expiring on 8 September 2026. I fix a non-parole period of 3 years to date from 9 September 2020 and expiring on 8 September 2023.

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 Meksavanh [2022] NSWDC 374
Hearing dates:	5 August 2022
Date of orders:	5 August 2022
Decision date:	05 August 2022
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The offender is convicted. 2 The offender is sentenced to imprisonment for 6 years to date from 9 September 2020 and expiring on 8 September 2026. I fix a non-parole period of 3 years to date from 9 September 2020 and expiring on 8 September 2023.
Catchwords:	CRIME — Drug offences — Commonwealth offences SENTENCING - objective seriousness - deterrence - appropriate penalty
Legislation Cited:	Crimes Act 1914
Cases Cited:	Cameron v The Queen (2002) 209 CLR 339 Danial v R [2008] NSWCCA 15 Johnson v The Queen (2004) 78 ALJR 616 R v El Karhani (1990) 21 NSWLR 370 R v Nguyen (2010) 205 A Crim R 106 R v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Souknelane Meksavanh (Offender)
Representation:	Counsel: D Berents (CDPP) J Clarke (Offender)
File Number(s):	2020/262841
Publication restriction:	None