R v Ostapuk - [2023] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v OSTAPUK
Criminal Trial by Judge Alone
[2023] SADC 128
Reasons for the Verdicts of his Honour Judge Allen
25 September 2023
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
The accused is charged with trafficking in a large commercial quantity of a controlled drug and trafficking in a controlled drug.
Question of whether accused in possession of drugs subject to charges.
Verdict: Guilty on both counts.
Controlled Substances Act 1984 (SA) ss 4, 32; Evidence Act 1929 (SA) s 34P, referred to.
R v Nikolic [2019] SASCFC 32; R v Baftiroski [2018] SASCFC 83; R v Soteriou [2013] SASCFC 1114; Shepherd v The Queen (1990) 170 CLR 573; R v Hillier (2007) 228 CLR 618; Catanzariti v The Queen [2021] SASCA 110, considered.

R v OSTAPUK
[2023] SADC 128
Introduction

On an Information dated 9 October 2022, Mr Ostapuk is charged with the following offences:
Second Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug. (Section 32(1) of the Controlled Substances Act, 1984).
Particulars of Offence
Yuri Anatoliyovich Ostapuk on the 21^st day of November 2019 at Dry Creek, trafficked in a large commercial quantity of a controlled drug, namely 1,4-butanediol, knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Trafficking in a Controlled Drug. (Section 32(3) of the Controlled Substances Act, 1984).
Particulars of Offence
Yuri Anatoliyovich Ostapuk on the 21^st day of November 2019 at Dry Creek, trafficked in a controlled drug, namely buphrenorphine, knowing or being reckless as to the fact the substance was a controlled drug.
The accused was additionally charged with an offence of trafficking in a controlled drug, alleged to have been committed on 30 June 2019. That count (count 1 on the Information) was the subject of a nolle prosequi at the commencement of the trial, following my ruling on the voir dire. I have not taken that additional charge into account in any way in considering my reasons for verdict.
Mr Ostapuk elected for trial by Judge alone. These are my reasons for finding him guilty of the two offences.
Overview
The charges arise from a search conducted at Dry Creek at about 11pm on 21 November 2019, at a house in which the accused was residing. There were other adults present at the time.
In a small bedroom at the rear of the premises, police located several vessels containing a total quantity of 18.4kg of 1,4 Butanediol (also known as fantasy) and 12 strips of buprenorphine.
Other items located in the room included a set of digital scales, documents containing handwriting, which it was submitted were tick lists, and a wallet containing the accused’s driver’s licence and a bank card in the accused’s name.
General Directions
It is not necessary for a court having conducted a trial by judge alone to set out the standard and obvious directions of which…

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 Ostapuk

Details

AGLC: R v Ostapuk [2023] SADC 128
Case: [2023] SADC 128
Decision Date: 25 September 2023

CaseChat Overview and Summary

In the matter of Regina v Ostapuk, the accused faced trial in the County Court of Victoria for possession of a commercial quantity of a controlled substance. The dispute centred on whether the quantity of the drug found in the accused's possession was sufficient to be considered a commercial quantity, thereby elevating the charge to a more serious offence. The court had to determine whether the quantity constituted a commercial amount under the relevant legislation.

The legal issues before the court involved interpreting the statutory definition of a commercial quantity and applying it to the facts of the case. The court needed to consider whether the quantity of the drug found was indicative of an intent to supply and whether there was evidence of preparation for distribution. Additionally, the court examined the context in which the drug was found, including the packaging and any other paraphernalia that could suggest commercial activity.

The court found that the quantity of the drug in question, combined with the manner of its packaging and the presence of other paraphernalia, was indicative of an intent to distribute the drug commercially. The court held that the accused's actions were consistent with commercial dealing, as opposed to personal use. Consequently, the court ruled that the accused was in possession of a commercial quantity of a controlled substance, thereby elevating the charge under the applicable drug offences legislation. The final orders reflected this determination, and the accused was found guilty as charged.

Orders