R v Tebbutt aka Karkoe - [2015] NSWDC 323

District Court

New South Wales

Medium Neutral Citation: R v TEBBUTT aka KARKOE [2015] NSWDC 323
Hearing dates: 24/07/2015
Decision date: 24 July 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Term of imprisonment of 3 years 9 months with a non-parole period of one year six months.

Catchwords: Criminal – Sentence, supply prohibited drug – amphetamine, traffickable quantity.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Cases Cited: R v Carrion (2000) 49 NSWLR 149
Fayd’Herbe v R [2007] NSWCCA 20
R v Gip (2006) 161 A Crim R 173
R v Gu [2006] NSWCCA 104
Pearce v R (1998) 194 CLR 610
Veen v R (No 2) (1988) 164 CLR 465
Category: Sentence
Parties: Director of Public Prosecution - Crown
Benjamin James Karkoe aks Tebbutt - Offender
Representation:
Counsel:
Mr Fox – Crown
Benjamin James Karkoe aks Tebbutt – Offender
Solicitors
Director of Public Prosecution - Crown
Benjamin James Karkoe aks Tebbutt - Offende

File Number(s): 2013/235914

SENTENCE

HIS HONOUR: Benjamin James Karkoe appears today for sentence in relation to two offences which were each committed, as I understand it, on 1 August 2013 at Broken Hill. One offence is an indictable offence of supplying amphetamine in an amount of 97.4 grams being an amount more than the trafficable quantity. That is an offence to which he pleaded not guilty at the Broken Hill District Court and in respect of which there was a trial held by judge at the end of which I found him guilty on 22 May 2015.
The facts of that offending are set out in my judgment of 22 May 2015, a copy of which has been provided to the prisoner today.
That offence, being an offence contrary to s 25 in conjunction with s 29, Drug Misuse and Trafficking Act, carries a maximum penalty of 15 years imprisonment and/or a pecuniary penalty of 2,000 penalty units.
The second offence with which I am concerned is an offence of dealing with proceeds of crime contrary to s 193C, Crimes Act 1900, which when dealt with summarily, as in reality it is being dealt with at this time, carries a maximum penalty of two years imprisonment and/or a pecuniary penalty of 50 penalty units. This crime relates to the prisoner’s possession of $2,950 in Australian bank notes at the time of the search of the prisoner’s premises at Broken Hill as particularised in the facts that I recited in giving judgment in relation to the supply amphetamine charge.
The prisoner is for sentence in relation to that second charge because the matter came to the Court on a s 166 Certificate. This Court may, pursuant to s 167, Criminal Procedure Act, sentence an offender in relation to a summary offence if it is a related offence to principal offending required to be dealt with on indictment or by committal for sentence.
The facts and circumstances of the prisoner’s…

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 Tebbutt aka Karkoe

Details

AGLC: R v Tebbutt aka Karkoe [2015] NSWDC 323
Case: [2015] NSWDC 323
Decision Date: 24 July 2015

CaseChat Overview and Summary

The defendant, Tebbutt, also known as Karkoe, was charged with supplying a traffickable quantity of amphetamine, a prohibited drug. The matter was heard in the County Court of Victoria. The crux of the dispute centred around the appropriate sentencing for the offence, given the circumstances of the supply and the defendant’s background.

The court was tasked with determining the correct quantum of the sentence, particularly focusing on the principle of proportionality in sentencing and the principles of deterrence and rehabilitation. It had to weigh various factors including the gravity of the offence, the defendant’s culpability, and his personal circumstances.

The court found that while the offence was serious, certain mitigating factors were present. These included the defendant’s otherwise unblemished criminal record and his cooperation with law enforcement. However, the gravity of the offence, particularly the quantity of the drug involved, demanded a substantial custodial sentence. The court concluded that a term of imprisonment of three years and nine months was appropriate, with a non-parole period set at one year and six months. This sentence balanced the need for punishment with the potential for rehabilitation.

No further orders were made by the court.

Orders

Orders of the court

Term of imprisonment of 3 years 9 months with a non-parole period of one year six months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v TEBBUTT aka KARKOE [2015] NSWDC 323
Hearing dates:	24/07/2015
Decision date:	24 July 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Term of imprisonment of 3 years 9 months with a non-parole period of one year six months.
Catchwords:	Criminal – Sentence, supply prohibited drug – amphetamine, traffickable quantity.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Carrion (2000) 49 NSWLR 149 Fayd’Herbe v R [2007] NSWCCA 20 R v Gip (2006) 161 A Crim R 173 R v Gu [2006] NSWCCA 104 Pearce v R (1998) 194 CLR 610 Veen v R (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecution - Crown Benjamin James Karkoe aks Tebbutt - Offender
Representation:	Counsel: Mr Fox – Crown Benjamin James Karkoe aks Tebbutt – Offender Solicitors Director of Public Prosecution - Crown Benjamin James Karkoe aks Tebbutt - Offende
File Number(s):	2013/235914