R v NE

Case [2015] ACTSC 352 2 November 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v NE
Citation:	[2015] ACTSC 352
Hearing Date:	29 October 2015
DecisionDate:	2 November 2015
Before:	Refshauge ACJ
Decision:	1. NE be convicted of importing a marketable quantity of MDMA. 2. NE be sentenced to three years imprisonment from today. 3. NE be convicted of importing cocaine. 4. NE be sentenced to 20 months imprisonment to commence today that is to be wholly concurrent on the sentence for importing marketable quantity of MDMA. 5. NE be convicted of importing 10.1 grams of MDMA. 6. NE be sentenced to two years imprisonment to commence today. That is to be wholly concurrent on the sentence for importing cocaine. 7. NE be convicted of importing 0.5 grams MDMA. 8. NE be sentenced to 18 months imprisonment to commence today. That is to be wholly concurrent on the sentence for importing 10.1 grams of MDMA. 9. NE be convicted of importing one gram of LSD. 10. NE be sentenced to 18 months imprisonment to commence today, that is to be wholly concurrent upon the sentence for importing 0.5 grams of MDMA. 11. NE be convicted of importing of seven grams of MDMA. 12. NE be sentenced to two years imprisonment to commence today. That is to be wholly concurrent on the sentence for importing one gram of LSD. 13. NE be subject to a recognizance release order. NE be released today upon giving security in the sum of $100.00 to be of good behaviour for four years. 14. NE be convicted of trafficking in cannabis. 15. NE be sentenced to two years imprisonment to commence on the 2 November 2016. That is to be cumulative as to one year on the sentence for importing a marketable quantity of MDMA. 16. NE be convicted of trafficking in MDMA. 17. NE be sentenced to 20 months imprisonment to commence on the 2 November 2016. That is to be wholly concurrent on the sentence for trafficking in cannabis. 18. NE be convicted of trafficking in LSD. 19. NE be sentenced to 12 months imprisonment to commence on the 2 November 2016. That is to be wholly concurrernt on the sentence for trafficking in MDMA. 20. NE be convicted of possessing the proceeds of crime. 21. NE be sentenced to six months imprisonment to commence on the 2 November 2016. That is to be wholly concurrent on the sentence for trafficking in LSD. 22. The sentence be suspended on the 2 November 2016 for 12 months. NE is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes Sentence Administration Act for a period of 2 years from the 2 November 2016. 23. The sentence for importing a marketable quantity of MDMA is reduced by 12 months for the assistance that NE has undertaken to provide [redacted for legal reasons].
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing– drug offences – importing MDMA –…

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 NE

Details

AGLC: R v NE [2015] ACTSC 352
Case: [2015] ACTSC 352
Decision Date: 2 November 2015

CaseChat Overview and Summary

The case involved the respondent, NE, who was charged with various drug-related offences including importing a marketable quantity of MDMA, importing cocaine, importing 10.1 grams of MDMA, importing 0.5 grams MDMA, importing one gram of LSD, importing seven grams of MDMA, trafficking in cannabis, trafficking in MDMA, trafficking in LSD, and possessing the proceeds of crime. The matter was heard in the ACT Magistrates Court. The central legal issues were the appropriate sentences for the various drug-related offences and the factors that should be considered in sentencing, particularly the role of rehabilitation and the recommendations of the Youth Justice Officer.

The court considered the principles of sentencing in relation to drug offences, noting the need to balance punishment, deterrence, and rehabilitation. The court took into account NE's young age, the fact that these were NE's first offences, and the assistance NE had provided to authorities. The court also considered the recommendations of the Youth Justice Officer, who had suggested a sentence that would facilitate NE's rehabilitation. The court ultimately determined that a sentence that included a period of imprisonment followed by a period of suspended sentence and good behaviour obligations would best serve the interests of justice, considering the need for deterrence, punishment, and rehabilitation.

In summary, the court found NE guilty of all charges and imposed a range of concurrent and cumulative sentences, taking into account the principles of sentencing and the recommendations of the Youth Justice Officer. The court also reduced the sentence for importing a marketable quantity of MDMA by 12 months to reflect NE's assistance to authorities. The court ordered that NE be released on recognizance and that the sentence be suspended for 12 months, subject to compliance with good behaviour obligations.

Orders

Orders of the court

1. NE be convicted of importing a marketable quantity of MDMA.

2. NE be sentenced to three years imprisonment from today.

3. NE be convicted of importing cocaine.

4. NE be sentenced to 20 months imprisonment to commence today that is to be wholly concurrent on the sentence for importing marketable quantity of MDMA.

5. NE be convicted of importing 10.1 grams of MDMA.

6. NE be sentenced to two years imprisonment to commence today. That is to be wholly concurrent on the sentence for importing cocaine.

7. NE be convicted of importing 0.5 grams MDMA.

8. NE be sentenced to 18 months imprisonment to commence today. That is to be wholly concurrent on the sentence for importing 10.1 grams of MDMA.

9. NE be convicted of importing one gram of LSD.

10. NE be sentenced to 18 months imprisonment to commence today, that is to be wholly concurrent upon the sentence for importing 0.5 grams of MDMA.

11. NE be convicted of importing of seven grams of MDMA.

12. NE be sentenced to two years imprisonment to commence today. That is to be wholly concurrent on the sentence for importing one gram of LSD.

13. NE be subject to a recognizance release order. NE be released today upon giving security in the sum of $100.00 to be of good behaviour for four years.

14. NE be convicted of trafficking in cannabis.

15. NE be sentenced to two years imprisonment to commence on the 2 November 2016. That is to be cumulative as to one year on the sentence for importing a marketable quantity of MDMA.

16. NE be convicted of trafficking in MDMA.

17. NE be sentenced to 20 months imprisonment to commence on the 2 November 2016. That is to be wholly concurrent on the sentence for trafficking in cannabis.

18. NE be convicted of trafficking in LSD.

19. NE be sentenced to 12 months imprisonment to commence on the 2 November 2016. That is to be wholly concurrernt on the sentence for trafficking in MDMA.

20. NE be convicted of possessing the proceeds of crime.

21. NE be sentenced to six months imprisonment to commence on the 2 November 2016. That is to be wholly concurrent on the sentence for trafficking in LSD.

22. The sentence be suspended on the 2 November 2016 for 12 months. NE is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes Sentence Administration Act for a period of 2 years from the 2 November 2016.

23. The sentence for importing a marketable quantity of MDMA is reduced by 12 months for the assistance that NE has undertaken to provide [redacted for legal reasons].

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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Citations

R v NE [2015] ACTSC 352

Most Recent Citation

Chiong Teck Tiong v The Queen [2016] VSCA 257

Cases Citing This Decision

R v MT [2022] ACTSC 136
Citation 1

…39 MT v The Queen [2021] ACTCA 26 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v TL [2017] ACTCA 18 R v Vincent [2006] NSWCCA 276 R v NE [2015] ACTSC 352 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Dawson v The Queen [2019] ACTCA 9…
R v McKenna [2022] ACTSC 346
Citation 2 (Para 1)

…has, as it frequently does, led them into criminal activity, have often remarked on this social tragedy. In this Territory, see, for example, R v NE [2015] ACTSC 352 at [55]–[58], R v NF (No 1) [2016] ACTSC 216 at [38]–[39] and R v Green [2021] ACTSC 356 at [1]–[2].…
Duffy v ACT Planning and Land Authority; Davidson v ACT Planning and Land Authority (Administrative Review) [2021] ACAT 104
Citation 3 (Para 1)

…it appropriate” to do so as provided by section 56(c)(iii).[14] [14] See, eg, Legal Practitioner v Council of the Law Society of the ACT (No.2) [2015] ACTSC 352 at [142] (per Murrell CJ); Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35 at [24]-[30] (per Penfold J, dissenting but not in re…
R v Collins (No 2) [2021] ACTSC 262
Citation 4

…kins [2015] ACTSC 145 R v Williams [2017] ACTSC 298 R v Lyons (No 1) [2020] ACTSC 358 Robertson v Leferve [2012] ACTSC 22; 258 FLR 1 The Queen v NE [2015] ACTSC 352…
R v Sagnelli [2020] ACTSC 348
Citation 5

…Adams v The Queen [2008] HCA 15; 234 CLR 143 Dunning v Tasmania [2018] TASCCA 21 Ludwig v The Queen [2015] VSCA 35 R v NE [2015] ACTSC 352 R v Faber [2020] SASCFC 49 Woods v The Queen [2020] NSWCCA 219…
Barnes v Lodding [2019] ACTMC 24
Citation 6

…Davidson [2018] ACTSC 227 R v Di Bitonton [2016] 280 R v Hyde [2017] ACTSC 337 R v Le Pavoux [2017] ACTSC 330 R v Lou (No 2) [2017] ACTSC 266 R v NE [2015] ACTSC 352 R v NF (No 1) [2016] ACTSC 216 Zhao v The Queen [2018] ACTCA 38…
R v Peter [2018] ACTSC 312
Citation 7

…Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police [2015] ACTSC 352 Gedeon v The Queen [2013] NSWCCA 257; 237 A Crim R 326 Heyward v Bishop [2015] ACTCA 58 Martin v The Queen; Martin v The Queen [2015] ACTCA 38 R v Johnson [2018] ACTSC 242 R v Trewin [2018] ACTSC 109 Re Applic…
Tiong v The Queen [2016] VSCA 257
Citation 8 (Para 1)

…1 [192]; see also R v Williams [2005] VSCA 274 [26]; R v Tabone (2006) 167 A Crim R 18, 24 [22]; Simpson v The Queen [2006] NSWCCA 117 [16]; R v NE [2015] ACTSC 352 [55]–[56]; DPP v Apostolopoulos [2016] VSCA 201 [31], [40]; DPP v Nguyen [2016] VCC 197 [13]–[16].…
R v NF (No 1) [2016] ACTSC 216
Citation 9 (Para 1)

…So far as the Commonwealth offences are concerned, they involve the assistance provided by NF to NE, who imported drugs. I have set out in R v NE [2015] ACTSC 352 at [10]-[16], the facts relating to NE's offending. NF was the friend referred to in those passages.…
R v Tamawiwy (No 4) [2015] ACTSC 371
Citation 10 (Para 1)

…As I said in the R v NE [2015] ACTSC 352, the internet has provided great value to the community but, at the same time, human ingenuity has permitted it also to be used for criminal activity.…

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Cases Cited

OH v Driessen [2015] ACTSC 148
Citation 1 (Para 1)

…ways with an eye on the opportunity to recognise the particular status of young offenders, and their immaturity, as I have explained in OH v Driessen [2015] ACTSC 148 at [72]-[76] and the need to create an appropriately crafted sentence to achieve ultimate reform.…
R v Slater [2014] ACTSC 300
Citation 2 (Para 1)

…With respect, Penfold J summed the matter up well when her Honour said in R v Slater [2014] ACTSC 300 at [11]:…
R v CV [2013] ACTCA 22
Citation 3 (Para 1)

…g Act 2005 (ACT). I have described that regime in R v PM [2009] ACTSC 24 at [43]-[65]. The approach that I there described was approved in the R v CV [2013] ACTCA 22 at [43].…
R v PM [2009] ACTSC 24
Citation 4 (Para 1)

…Territory. This brings into operation the special regime under Ch 8A of the Crimes Sentencing Act 2005 (ACT). I have described that regime in R v PM [2009] ACTSC 24 at [43]-[65]. The approach that I there described was approved in the R v CV [2013] ACTCA 22 at [43].…
Weininger v The Queen [2003] HCA 14
Citation 5 (Para 1)

…the criminal justice system and that entitles him to some leniency. See, for example, the comments to that effect by Kirby J in Weininger v The Queen (2003) 212 CLR 629 at 647-648; [58]-[59].…
R v Wright [1998] VSCA 84
Citation 6

…itating young offenders, if at all possible, requires a careful approach to the sentencing of such offenders. See, for instance, the R v Mills [1998] 4 VR 235 at 242 and Murray Walter Hearn (2001) 124 A Crim R 451 at 459; [27].…
Gilson v The Queen [1991] HCA 24
Citation 7 (Para 1)

…ng-held that the maximum penalty provided by the legislature is an indication of the seriousness of the offence. See, for example, Gilson v The Queen (1991) 172 CLR 353 at 364.…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 133C, 33, 7
4 mentions (from Para 1)
Criminal Code Act 1995 (Cth) 307(2), 307(3)
3 mentions (from Para 1)
Crimes Act 1900 (ACT) 114C
2 mentions (from Para 1)
Crimes Act 1914 (Cth) 20(c)
2 mentions (from Para 1)