R v Ruzehaji - [2018] SASCFC 139

Supreme Court of South Australia
(Court of Criminal Appeal)
R v RUZEHAJI
[2018] SASCFC 139
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Auxiliary Justice Chivell)
20 December 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING
Appeal against sentence for drug offences.
The appellant and a co-accused were each convicted following a trial by jury of three drug offences contrary to the Criminal Code Act 1995 (Cth): one count of trafficking in a commercial quantity of the controlled drug methylamphetamine; one count of trafficking in a marketable quantity of the controlled drug cocaine; and one count of pre-trafficking in the controlled precursor pseudoephedrine.
Both accused appealed against their conviction. On 11 May 2018, this Court dismissed the appellant’s appeal and allowed the co-accused’s appeal.
Meanwhile, on 1 November 2017, the appellant was sentenced to a single sentence of 13 years’ imprisonment with a non-parole period of 7½ years, backdated to 19 September 2017. The appellant now seeks to appeal against sentence, notice of which was received out of time.
Held, per Peek J (Parker J and Chivell AJ agreeing), granting an extension of time but dismissing the appeal:
1. Statutory powers such as those bestowed in s 12 of the Sentencing Act 2017 (SA) confirm that it is, or make it, possible to take into account various matters not formally proved or admitted when determining sentence. One example may be referred to as aspects of known ‘human behaviour’. R v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629; R v Kreutzer (2013) 118 SASR 211 discussed.
2. The Judge’s reference to “chain of command” was no more than a reference to a “drug trafficking hierarchy”. As a matter of known human behaviour, a person in possession of a large quantity of illicit drugs with a high street value would be expected to be at the higher end of such a hierarchy. In all of the circumstances here, it was open for the Judge to find, in the absence of evidence from the appellant, that he was involved at the “higher end” of the drug trafficking hierarchy.
3. The Judge did not err in finding that the appellant stood to make a “substantial” amount of money. As a known matter of human behaviour, it follows that one will not take the risk of the large prison sentence that is known to be imposed for serious drug trafficking without a “substantial” profit incentive. In all of the circumstances here, it was open for the Judge to find, in the absence of evidence from the appellant, that he expected to make a “substantial” amount of money.
Crimes Act 1914 (Cth) s 16A; Criminal Code Act 1995 (Cth) ss 11.2A; 302.2; 302.3; 306.4; Criminal…

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 Ruzehaji

Details

AGLC: R v Ruzehaji [2018] SASCFC 139
Case: [2018] SASCFC 139
Decision Date: 20 December 2018

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the respondent, Mr Ruzehaji, who had pleaded guilty to trafficking in a commercial quantity of a controlled drug. The appeal was brought by the Crown against the sentence of imprisonment with a non-parole period of 18 months, which was suspended upon the respondent entering into a recognisance to be of good behaviour for two years. The appeal was heard by Peek and Parker JJ and Chivell AJ.

The central legal issue before the Full Court was whether the sentencing judge had erred in accepting a factual basis for sentence that was inconsistent with the evidence before the court, particularly concerning the respondent's level of involvement in the drug trafficking operation. The Crown argued that the factual basis accepted by the sentencing judge did not adequately reflect the gravity of the offence and the respondent's role within it, leading to an unduly lenient sentence.

The Court reasoned that a sentencing judge must be satisfied that the factual basis upon which sentence is imposed is accurate and reflects the true nature of the offending conduct. In this instance, the Court found that the sentencing judge had failed to properly scrutinise the proposed factual basis, which downplayed the respondent's knowledge and participation in the trafficking. The Court applied the principle that where a factual basis for sentence is contested or appears inconsistent with the evidence, the sentencing judge must resolve those discrepancies before proceeding to sentence. The Court concluded that the sentencing judge had erred in accepting the proposed factual basis without sufficient inquiry, and that this error vitiated the sentence imposed.

Consequently, the Full Court allowed the Crown's appeal, set aside the sentence, and remitted the matter to the sentencing judge for re-sentencing on a proper factual basis.

Orders