R v Visser - [2016] ACTSC 261

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Visser
Citation:	[2016] ACTSC 261
Hearing Dates:	21 July; 7 September 2016
DecisionDate:	7 September 2016
Before:	Murrell CJ
Decision:	For the trafficking offences, sentenced to a 16-month intensive correction order subject to conditions, and for the possession offences, fined $1,200.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty verdicts in judge alone trial – drug offences – traffic in controlled drug other than cannabis – traffic in trafficable quantity of cannabis – possession of oxycodone – possession of declared substance – intensive correction order
Legislation Cited:	Crimes (Sentencing) Act2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) (Criminal Code) ss 603(7), 603(5) Drugs of Dependence Act 1989 (ACT) s 169(1) Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) s 36
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Bui v The Queen [2015] ACTCA 5 R v Hasani [2015] ACTSC 161 R v Hoang [2015] ACTSC 138 R v Lee [2015] ACTSC 415 R v Visser [2016] ACTSC 40
Parties:	The Queen (Crown) Wayne Visser (Offender)
Representation:	Counsel Ms E Beljic (Crown) Mr J Purnell SC (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender)
File Number(s):	SCC 125 of 2015; SCC 127 of 2015

MURRELL CJ:

Background

After a judge alone trial on 18 March 2016, the offender was found guilty of three offences, each of which occurred on 29 August 2014:

(a)Trafficking in a controlled drug other cannabis, i.e. methylamphetamine (total quantity 10.291 grams), contrary to s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code) (maximum penalty 10 years' imprisonment).
(b)Trafficking in a trafficable quantity of cannabis (total quantity 898 grams), contrary to s 603(5) of the Criminal Code (maximum penalty 10 years' imprisonment).
(c)Possession of oxycodone, contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (maximum penalty two years' imprisonment).

The offender is also to be sentenced on the transferred offence of possessing a declared substance (anabolic steroids), contrary to s 36 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) (maximum penalty two years' imprisonment). On 28 January 2015, in the Magistrates Court, the offender pleaded guilty to that offence. He should receive a discount in recognition of the early plea of guilty.

In relation to each of the trafficking offences, the prosecution relied upon possession of a quantity of the substance that exceeded the trafficable quantity. Possession of a quantity in excess of the trafficable quantity gives rise to a presumption of intention to sell (trafficking). The trafficable quantity for methylamphetamine is six grams. The commercial quantity is three kilograms. The trafficable quantity for cannabis is 300 grams. The commercial quantity is 30 kilograms.

Facts

The facts upon which the offender was found to be guilty are set out in my decision: R v Visser [2016] ACTSC 40.

In brief, at 9.28 am on 29 August 2014 the…

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 Visser

Details

AGLC: R v Visser [2016] ACTSC 261
Case: [2016] ACTSC 261
Decision Date: 7 September 2016

CaseChat Overview and Summary

In the case of R v Visser, the appellant faced charges relating to drug offences, including trafficking in a controlled drug other than cannabis, trafficking in a trafficable quantity of cannabis, possession of oxycodone, and possession of a declared substance. The trial took place in a court of summary jurisdiction, where the appellant was tried by a judge alone. Following the trial, the appellant was found guilty on all counts and the court was required to determine an appropriate sentence.

The central legal issue was the imposition of a suitable sentence that reflected the seriousness of the offences, the culpability of the appellant, and the principles of sentencing. Given the nature of the drug offences, the court had to balance the need for deterrence, rehabilitation, and protection of the community. The court also considered the appellant's background, including any prior convictions and personal circumstances, to tailor the sentence to the individual.

The court determined that an intensive correction order was appropriate for the trafficking offences, given the appellant's non-violent nature of the crimes and the potential for rehabilitation. The court imposed a 16-month intensive correction order with specific conditions to address the appellant's offending behaviour. For the possession offences, the court opted for a financial penalty, fining the appellant $1,200, considering the lesser severity of these offences compared to the trafficking charges. The court's reasoning emphasised the need for a sentence that would not only punish the appellant but also provide a pathway towards reintegration into society.

Orders

Orders of the court

For the trafficking offences, sentenced to a 16-month intensive correction order subject to conditions, and for the possession offences, fined $1,200.

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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