Robert James Polosak v Joshua Asfour

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Robert James Polosak v Joshua Asfour

Citation:

[2022] ACTMC 14

Hearing Date(s):

2 June 2022

DecisionDate:

21 June 2022

Before:

Chief Magistrate Walker

Decision:

See [30], [35] – [41]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Offending occurred during existing intensive corrections order

Legislation Cited:

Crimes Act 1900 (ACT) s 375(15)(a)

Criminal Code 2002 (ACT) s 603(7)

Crimes (Sentence Administration) Act 2005 (ACT) (‘Sentence Administration Act’) s 7, s 33, s 65, s 79

Firearms Act 1996 (ACT) s 42(1)(a)(iii)

Cases Cited:

Bui v The Queen [2015] ACTCA 5

R v ER [2022] ACTSC 112

R v Figura (No 3) [2021] ACTSC 162

R v Hoang [2020] ACTSC 262

R v Pahl [2022] ACTSC 113

R v XXL [2022] ACTSC 24

Zdravkovic v The Queen [2016] ACTCA 53

Parties:

Robert Polosak (Informant)

Joshua Asfour (Defendant)

Representation:

Solicitors

E Wren (ACT Director of Public Prosecutions)

T Sharman (Tim Sharman Solicitors)

File Number(s):

CC 14481 of 2020

CC 1928 of 2022

CC 1929 of 2022

CHIEF MAGISTRATE WALKER:

1. The offender is charged with one count of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to section 603 (7) of the Criminal Code 2002 (ACT). This offence on conviction carries up to 10 years imprisonment, a fine of up to 1,000 penalty units, or a combination of both. He is further charged with possessing a prohibited firearm contrary to section 42 (1)(a)(iii) of the Firearms Act 1996 (ACT), namely a gel blaster, whilst not authorised by a license, permit or otherwise, an offence which also carries up to 10 years imprisonment. In respect to each of these offences, the defendant consented to the jurisdiction of this court, limiting the maximum penalty of imprisonment which can be imposed to five years imprisonment or a fine of up to $15,000 pursuant to s375(15)(a) of the Crimes Act 1900 (ACT).

1. The defendant is also charged with possessing a declared substance, being controlled or prescription only medicines, namely clonazepam, diazepam, buprenorphine and fentanyl, without authorisation to possess the substances. This offence attracts a maximum penalty of two years imprisonment or a fine of up to 200 penalty units, or a combination of both.

1. The factual circumstances are uncomplicated. At about 4 a.m. on 18 December 2020, police executed a search warrant at 30/1 Roustabout Street, Lawson where the offender was living.

1. During the search of his bedroom approximately 35g of cocaine was found inside a Louis Vuitton bag. It has been assessed by the ACT Government Analytical Laboratory as being 28.8% pure, consistent with the offender’s admission at the scene that it would be over 28% pure. Scales were also found in the bag. Clip seal bags with white residue were found in a bedside table drawer. On the floor, a small grinder containing white residue and a plastic bag containing a common cocaine cutting agent, “inositol”, were found.

1. The following items were also found in…