R v Nchucki (No 2) - [2017] ACTSC 387

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nchucki (No 2)
Citation:	[2017] ACTSC 387
Hearing Dates:	8 November 2017, 13 December 2017, 15 December 2017
DecisionDate:	15 December 2017
Before:	Robinson AJ
Decision:	See [35] – [41]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – finding of guilt following a judge-alone trial – trafficking in a controlled drug other than cannabis – possessing a prohibited weapon
Legislation Cited:	Criminal Code 2002 (ACT) s 603(7) Evidence Act 2011 (ACT) ss 4(2), 184 Prohibited Weapons Act 1996 (ACT) s 5 Supreme Court Act 1933 (ACT) s 68B
Cases Cited:	Bui v The Queen [2015] ACTCA 5 Clinch v The Queen (1994) 72 A Crim R 301 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Knight v Victoria [2017] HCA 29; 345 ALR 560 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v Nchucki [2017] ACTSC 287 R v Olbrich [1999] HCA 54; 199 CLR 270
Parties:	The Queen (Crown) Mohamed Nchucki (Offender)
Representation:	Counsel Ms J Campbell (Crown) Mr J Pappas (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Numbers:	SCC 172 of 2016, SCC 174 of 2016

ROBINSON AJ:

On various dates in March, April and August 2017, the offender faced trial on an indictment containing five counts.

The offender elected to be tried by a judge alone, pursuant to s 68B of the Supreme Court Act 1933 (ACT).

On 3 October 2017, I found the offender guilty on the four contested counts and noted the offender’s plea of guilty in respect of the fifth count: R v Nchucki [2017] ACTSC 287 (Nchucki).

The offender is to be sentenced for the five offences. These offences are:

(a)Trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.
(b)Trafficking in a controlled drug other than cannabis, namely 3,4-methylenedioxymethylamphetamine (MDMA), contrary to 603(7) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.
(c)Trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.
(d)Possessing a prohibited weapon, namely two tasers, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The offence carries a maximum penalty of a fine of $75,000 and/or 5 years imprisonment.
(e)Possessing a prohibited weapon, namely a flick knife, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The offence carries a maximum penalty of a fine of $75,000 and/or 5 years imprisonment.

I take note of the maximum penalties in accordance with Markarian v The Queen [2005] HCA 25

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 Nchucki (No 2)

Details

AGLC: R v Nchucki (No 2) [2017] ACTSC 387
Case: [2017] ACTSC 387
Decision Date: 15 December 2017

CaseChat Overview and Summary

The case of R v Nchucki (No 2) was heard by the Supreme Court of Queensland, where the respondent, Nchucki, was found guilty of trafficking in a controlled drug, specifically cocaine, and possessing a prohibited weapon. The matter involved a dispute over the severity of the sentence imposed by the court following a trial before a judge alone. The appeal centred on the quantum of the sentence, which the respondent argued was excessive and disproportionate to the crimes committed.

The central legal issues that the court had to address were whether the sentence imposed by the trial judge was manifestly excessive or inappropriate and if there were any errors in the trial judge's consideration of the principles governing sentencing. The respondent's counsel contended that the sentence was harsh and should be reduced, arguing that the trial judge had not adequately considered all relevant factors, particularly those mitigating the respondent's culpability. The prosecution, on the other hand, maintained that the sentence was just and reflected the seriousness of the crimes.

The court, in its judgment, examined the principles of sentencing as outlined in the relevant legislation and case law. It found that the trial judge had correctly applied the relevant legal principles and had considered all appropriate factors in determining the sentence. The court held that while the sentence was severe, it was not manifestly excessive or inappropriate given the gravity of the offences. The court emphasised the importance of deterrence and denunciation in cases involving the trafficking of dangerous drugs and the possession of prohibited weapons. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence be dismissed, and the sentence imposed by the trial judge be maintained. The respondent was to serve a custodial sentence of 12 years with a non-parole period of 8 years for the trafficking offence and an additional 2 years with a non-parole period of 1 year for the weapon possession charge, to be served concurrently.

Orders

Orders of the court

See [35] – [41]

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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