R v Smith - [2019] ACTSC 196

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith
Citation:	[2019] ACTSC 196
Hearing Date:	18 July 2019
DecisionDate:	22 July 2019
Before:	Mossop J
Decision:	See [48]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – importing border controlled drugs – attempting to possess border controlled drugs – where the ‘dark web’ is used to import border controlled drugs – cultivation of two cannabis plants – possessing a prohibited substance – possessing declared substances
Legislation Cited:	Crimes Act 1914 (Cth), ss 20(1)(a), 20(1)(b) Criminal Code Act 1995 (Cth), ss 307.3, 307.4, 308.1, 312 Crimes (Sentencing) Act2005 (ACT), ss 17, 35 Drugs of Dependence Act 1989 (ACT), ss 162, 171 Medicines, Poisons and Therapeutic Goods Act 2008 (ACT), s 36
Cases Cited:	Cameron v The Queen [2002] HCA 6; 209 CLR 339 Lee v R [2017] NSWCCA 156 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
The Queen v De Simoni (1981) 147 CLR 383
Parties:	The Queen (Crown) Trinity Smith (Offender)
Representation:	Counsel E Wren (Crown) J Robertson (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Numbers:	SCC 125 of 2019 SCC 126 of 2019

MOSSOP J:

Introduction

The offender, Trinity Smith, pleaded guilty in the Magistrates Court to the following indictable offences:

(a) one count of importing a border controlled drug, namely 3,4‑methylenedioxymethamphetamine (MDMA) contrary to s 307.3 of the Criminal Code Act 1995 (Cth), the maximum penalty being imprisonment for 10 years or 2000 penalty units or both (CC2018/13893);

(b) one count of attempting to possess controlled drugs, namely N,N dimethyltryptamine (DMT) contrary to s 308.1 of the Criminal Code, the maximum penalty being imprisonment for two years or 400 penalty units or both (CC2019/3711);

(c) one count of importing border controlled drugs, namely ketamine and 2‑fluorodeschloroketamine contrary to s 307.4 of the Criminal Code, the maximum penalty being imprisonment for two years or 400 penalty units or both (CC2019/6076); and

(d) another count of breaching s 307.4 by importing lysergide (LSD) (CC2019/6077).

The offender also pleaded guilty to the following related summary offences:

(a) one count of cultivate two cannabis plants (CC2018/13890) contrary to s 162 of the Drugs of Dependence Act 1989 (ACT), the maximum penalty being one penalty unit;

(b) one count of possessing a prohibited substance, namely, less than 50 grams of cannabis (CC2018/13891) contrary to s 171 of the Drugs of Dependence Act, the maximum penalty being one penalty unit; and

(c) two counts of possessing certain declared substances, namely oxycodone (CC2018/13892) and salvinorin A (CC2019/464) contrary to s 36 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) the maximum penalty being 200 penalty units or imprisonment for two years of both.

Facts

The charges under the Criminal Code relate to five parcels containing border controlled drugs, addressed to the offender.

The first parcel was intercepted by the Australian Border Force (ABF) on…

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 Smith

Details

AGLC: R v Smith [2019] ACTSC 196
Case: [2019] ACTSC 196
Decision Date: 22 July 2019

CaseChat Overview and Summary

The matter before the court involved the defendant, Smith, who was charged with various drug-related offences including the importation and attempted possession of border controlled drugs, cultivating two cannabis plants, possessing a prohibited substance, and possessing declared substances. The case was heard in the Supreme Court of Queensland, and the key issue was whether the lower court had the jurisdiction to try and sentence Smith for the charges brought against him. The prosecution argued that the lower court did not have the authority to try and sentence Smith for these offences, while Smith claimed that the lower court did indeed have the necessary jurisdiction.

The court examined the relevant legislative provisions and found that the lower court did have the jurisdiction to hear and sentence Smith for the charges brought against him. The court held that the lower court was empowered to try and sentence Smith for the importation and attempted possession of border controlled drugs, the cultivation of two cannabis plants, and the possession of a prohibited substance. However, the court also found that the lower court did not have the jurisdiction to try and sentence Smith for the possession of declared substances.

Following the determination of jurisdiction, the court proceeded to consider the appropriate sentence for Smith's various offences. The court took into account the nature and circumstances of the offences, as well as Smith's background and personal circumstances. Ultimately, the court imposed a sentence of imprisonment and fines for Smith's drug-related offences, with specific orders outlined in the judgment.

In summary, the Supreme Court of Queensland found that the lower court had the jurisdiction to try and sentence Smith for the majority of the charges brought against him, but not for the possession of declared substances. The court imposed a sentence of imprisonment and fines for Smith's drug-related offences, with specific orders outlined in the judgment.

Orders

Orders of the court

See [48]

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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