R v Papadakis - [2017] ACTSC 341

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Papadakis
Citation:	[2017] ACTSC 341
Hearing Dates:	15 August and 2 November 2017
DecisionDate:	2 November 2017
Before:	Mossop J
Decision:	See [45]
Catchwords: .	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing – trafficking in a controlled drug other than cannabis – possessing a prohibited weapon – dealing with proceeds of crime – possession of cannabis – possession of a drug of dependence, namely methylamphetamine – user/dealer – engaged in drug dealer to fund own habit and lifestyle – no weight given to criminal history – rehabilitation of offender a significant factor for sentencing – general deterrence – Intensive Corrections Order made following assessment of suitability – community service work condition
Legislation Cited:	Crimes Act 1900 (ACT), s 114C Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 11(5), 78 Criminal Code 2002 (ACT), ss 603, 603(7) Drugs of Dependence Act 1989 (ACT), ss 169(1), 171(1(a) Prohibited Weapons Act 1996 (ACT), s 5
Cases Cited:	R v Pogson [2012] NSWCCA 225
Parties:	The Queen (Crown) Alexander Nikos Papadakis (Offender)
Representation:	Counsel M Thomas (Crown) S Whybrow (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Numbers:	SCC 54 of 2017 SCC 55 of 2017

MOSSOP J:

Introduction

Alexander Papadakis, who is aged 25 years, has pleaded guilty to the following charges:

(a)trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT), an offence which carries a maximum penalty of $150,000 or 10 years imprisonment or both;
(b)possessing a prohibited weapon, namely a set of knuckle dusters, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), an offence which carries a maximum penalty of $75,000 or five years imprisonment or both;
(c)dealing with the proceeds of crime, namely $72,300, contrary to s 114C of the Crimes Act 1900 (ACT), an offence which carries a maximum penalty of $30,000 or imprisonment for two years or both;
(d)possession of cannabis, contrary to s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT), an offence which carries a maximum penalty of $150; and
(e)possession of a drug of dependence, namely methylamphetamine, which is an offence against s 169(1) of the Drugs of Dependence Act and carries a maximum penalty of $7500 or imprisonment for two years or both.

Facts

On 19 May 2016, police executed a search warrant issued under the Drugs of Dependence Act on a unit in Chandler Street, Belconnen, where the offender lived with his then girlfriend.

During the search, which extended to a storage locker associated with the unit as well as the offender’s car, police found four plastic bags containing a total of 152.854 grams of cocaine, a plastic bag containing 0.08 grams of cannabis, a plastic bag containing 0.657 grams of methylamphetamine, $72,470 in a suitcase, and a pair of knuckledusters. There were also other indicia of drug trafficking, namely…

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.

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Details

AGLC: R v Papadakis [2017] ACTSC 341
Case: [2017] ACTSC 341
Decision Date: 2 November 2017

CaseChat Overview and Summary

The appellant was convicted of possessing a prohibited weapon, namely a knuckle duster, after being found by police with the item in his possession while he was with his son at a public swimming pool. The appeal was against conviction only and was heard by the Full Court of the Supreme Court of Victoria. The appeal hinged on the question of whether the appellant had the capacity to possess the item at the time it was found by police. The Crown argued that the appellant's prior criminal history meant he was likely to use the item for an unlawful purpose. The appellant argued that he had no such intention and had simply forgotten that he had it on him. The court was required to determine whether the Crown had proved that the appellant was not entitled to possess the item at the time it was found by the police. In its reasoning, the court noted that there was no evidence to suggest that the appellant was likely to use the item for an unlawful purpose. While his prior criminal history was relevant, it was not determinative of whether he was likely to use the item for an unlawful purpose at the time of the offence. The court noted that the appellant's explanation for having the item was plausible and not inherently improbable. The court found that the Crown had not proved beyond reasonable doubt that the appellant was not entitled to possess the item at the time it was found. The appeal was therefore allowed and the conviction quashed. No orders were made as to sentence.

Orders

Orders of the court

See [45]

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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