R v Mokmargana (No 2)
[2017] ACTSC 165
•7 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mokmargana (No 2) |
Citation: | [2017] ACTSC 165 |
Hearing Date: | 7 July 2017 |
DecisionDate: | 7 July 2017 |
Before: | Elkaim J |
Decision: | See paragraph [19] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Administering certain declared substances – plea of guilty. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33 Crimes (Sentence Administration) Act 2005 (ACT) Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) ss 6 and 37 (1) |
Parties: | The Queen (Crown) Juswan Mokmargana (Offender) |
Representation: | Counsel Ms E Beljic (Crown) Mr J Stewart (Offender) |
| Solicitors ACT Office of the Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Number: | SCC 246 of 2016 |
ELKAIM J:
This morning, the offender pleaded guilty to the following offence:
Contrary to s 37(1) of the Medicines, Poisons and Therapeutic Goods Act 2008 [the MPTG Act], the offender, on 9 April 2016, administered a declared substance (other than a pharmacy medicine or pharmacist only medicine) to TS and he was not authorised to administer the substance to this person.
The maximum penalty for the offence is 12 months imprisonment and/or a fine of $15,000.
The offender’s plea followed his acquittal by this Court, sitting with a jury, of the indictable offence of attempting to have sexual intercourse with TS without her consent and knowing she did not consent.
The parties have asked me to deal with the sentence this afternoon, so my comments are necessarily brief.
The facts giving rise to the offence to which the accused has pleaded guilty were plainly evident in the course of the trial and, in particular, on CCTV footage. Specifically, the offender placed up to two tablets of Stilnox (Zolpidem) into TS’s drink. The tablets had been crushed at some earlier time and were inserted into the drink in powder form.
I do not think that it is inconsistent with the jury’s verdict to say that the purpose of the administration of the drug was to render TS into an at least drowsy state and to take advantage of her. TS did not consent to the administration of the drug.
The fact that the maximum penalty for this offence is a term of imprisonment indicates that the legislature, and in turn the public, consider the offence to be serious and deserving of a possible sentence of incarceration.
This sentiment is reflected in the objects of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT). They set out in s 6(1):
6 Objects
(1)The main object of this Act is to promote and protect public health and safety by minimising:
(a) accidental and deliberate poisonings by regulated substances; and
(b) medicinal misadventures related to regulated substances; and
(c) the diversion of regulated substances for abuse; and
(d) the manufacture of regulated substances that are subject to abuse; and
(e) harm from regulated therapeutic goods.
The offender is now 46 years of age. He was born in Indonesia and came to Australia in 1986. He is now an Australian citizen. He has been in steady employment, most recently working in the investment and insurance industry. He lost his job in November last year when his employer found out about the current charges.
The offender has no prior criminal record. This is a significant matter to be taken into account. He also pleaded guilty to the offence, although there is very little utilitarian value in the plea and the evidence against him was very strong. Although I take into account the plea of guilty, I do not do so to the extent of any specific percentage.
The Stilnox had been prescribed to the offender by his general practitioner, apparently to treat a sleeping disorder. The fact that the offender came into lawful possession of the drug does not, in my view, in any way lessen the seriousness of the offence.
As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also very mindful of s 10, which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate. I note, at this stage, that an Intensive Corrections Order was not suggested.
In respect of 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), I have not considered other cases because they do not seem to be any precedents arising from the same section of the MPTG Act.
It is necessary to consider deterrence. I do not think this offender is likely to reoffend but general deterrence is important. Offences of this nature are easy to commit but are capable of producing significant harm.
In my view, the administration of a drug to another person, without that person’s consent and without any knowledge of the likely effect of the drug on the person, and in addition with at least a dishonourable intent, amounts to a factual scenario deserving of a sentence of imprisonment.
The offender is fortunate that TS did not suffer any physical after-effects. Nevertheless, she endured a traumatic period after she discovered the powder in her drink. She said the period during which she was waiting for the police to arrive was “the hardest
45 minutes” of her life.
I think that the appropriate course is for the sentence of imprisonment to be suspended with immediate effect but be accompanied by a good behaviour order.
In my view, the sentence of imprisonment should be for 6 months and the good behaviour order should be for a period of 12 months.
I make the following orders:
(a)The conviction is confirmed.
(b)The offender is sentenced to a period of imprisonment of 6 months to commence today and end on 6 January 2018.
(c)The sentence of imprisonment is suspended with immediate effect.
(d)The offender is subject to a Good Behaviour Order for a period of 12 months. During this period, he is subject to the core conditions of the Crimes (Sentence Administration) Act 2005 (ACT), including submitting to the supervision of the Department of Corrective Services for the whole 12 months or such lesser period as is determined by the Department.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim. Associate: Date: 7 July 2017 |
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