R v Nchouki - [2022] ACTSC 227

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nchouki
Citation:	[2022] ACTSC 227
Hearing Date:	10 August 2022
DecisionDate:	30 August 2022
Before:	Mossop J
Decision:	See [38]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in cocaine – unlicensed driver – unregistered vehicle – uninsured vehicle on road or road related area – trafficking offence in the mid-range of objective seriousness – good prospects for rehabilitation – limited criminal history – general and specific deterrence are significant considerations – custodial sentence required – sentence of imprisonment imposed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP Criminal Code 2002 (ACT), s 603(7) Criminal Code Regulation 2005 (ACT), Sch 1 Magistrates Court Act 1930 (ACT), s 90B Motor Accident Injuries Act 2019 (ACT), s 289(1) Road Transport (Driver Licensing) Act 1999 (ACT), s 31(1) Road Transport (Vehicle Registration) Act 1999 (ACT), s 18(1)
Cases Cited:	Kelly v Ashby [2015] ACTSC 346 R v Harmouche [2020] ACTSC 194 R v Pahl [2022] ACTSC 113
Parties:	The Queen ( Crown) Jomal Nchouki ( Offender)
Representation:	Counsel J Hiscox ( Crown) S Whybrow ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law ( Offender)
File Numbers:	SCC 275 of 2021 SCC 276 of 2021

MOSSOP J:

Introduction

The offender, Jomal Nchouki, has pleaded guilty to the following offences:

(a)One count of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (CC2021/4561). The maximum penalty is imprisonment for 10 years, 1000 penalty units or both.
(b)One count of being an unlicensed driver, contrary to a 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC2021/4562). The maximum penalty is 20 penalty units.
(c)Two counts of using an unregistered vehicle, contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) (CC2021/6343 and CC2021/6344). The maximum penalty is 20 penalty units.
(d)One count of using an uninsured vehicle on a road or road related area, contrary to s 289(1) of the Motor Accident Injuries Act 2019 (ACT) (CC2021/6345). The maximum penalty is 50 penalty units.

Facts

The facts are agreed and are in summary as follows.

Police commenced an investigation into the offender’s trafficking of controlled drugs in November 2020. His movements and communications were monitored. The offending to which he has pleaded guilty relates to the period 6 April 2021 until 1 May 2021. The movements of the offender and telephone records indicated that he was trafficking drugs to three men, although the Crown cannot prove the volume of drugs that were supplied to those three men prior to the time that he was arrested. Trafficking of an unknown quantity and value occurred on 9 April and 23 April 2021. The three men were onselling at least some of their drugs and had customers of their own. The identity of the person who supplied the cocaine to Mr Nchouki is unknown.

On 30…

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 Nchouki

Details

AGLC: R v Nchouki [2022] ACTSC 227
Case: [2022] ACTSC 227
Decision Date: 30 August 2022

CaseChat Overview and Summary

In the case of R v Nchouki, the appellant was convicted of trafficking in cocaine, driving an unregistered and uninsured vehicle, and being an unlicensed driver on a road or road-related area. The appeal was against the sentence imposed by the Magistrates' Court of Victoria. The primary focus of the appeal was the length of the sentence, which was argued to be excessive given the circumstances of the case.

The court was tasked with determining whether the sentence imposed was appropriate in light of the objective seriousness of the offence, the prospects for rehabilitation, the appellant's criminal history, and the principles of general and specific deterrence. The court acknowledged the mid-range objective seriousness of the trafficking offence but also noted the appellant's limited criminal history and good prospects for rehabilitation. It was necessary to balance these factors against the importance of deterrence.

After careful consideration, the court concluded that while the sentence imposed was severe, it was justified given the need for general and specific deterrence. The court found that a custodial sentence was necessary to adequately address the offence's gravity and to deter both the appellant and the community from similar conduct in the future. The court upheld the sentence imposed by the Magistrates' Court, finding it to be appropriate in all the circumstances.

The final orders of the court were to affirm the sentence imposed by the Magistrates' Court of Victoria, rejecting the appeal against the sentence.

Orders

Orders of the court

See [38]

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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