The Queen v Nader Takalubegash - [2002] ACTSC 66

THE QUEEN v NADER TAKALUBEGASH [2002] ACTSC 66 (17 July 2002)

CATCHWORDS

CRIMINAL LAW – Sentence – Drug offence – Factors to be considered – Prior indictment withdrawn and new indictment substituted – Substantial difference between charges on committal for trial, prior indictment and new indictment – Arraignment on substituted indictment – Guilty plea entered on substituted indictment – Plea entered at earliest practicable opportunity.

CRIMINAL LAW – Sentence – Factors to be considered – Offender’s subjective factors.

Cameron v The Queen [2002] HCA 6 (14 February 2002)
Cameron v The Queen [2000] WASCA 286
R v Wong [1999] NSWCCA 420; 48 NSWLR 340
Harvey v R [2000] NSWCCA 253; 113 A Crim R 434
Ngui and Tiong v R [2000] VSCA 78; 111 A Crim R 593

No. SCC 138 of 2000

Judge: Higgins J
Supreme Court of the ACT
Date: 17 July 2002

IN THE SUPREME COURT OF THE  )
  )  No. SCC 138 of 2000
AUSTRALIAN CAPITAL TERRITORY  )

THE QUEEN

against

NADER TAKALUBEGASH

REASONS FOR SENTENCE

Judge:  Higgins J
Date:  17 July 2002
Place:  Canberra

THE COURT ORDERS THAT:

On the charge of possession of a traffickable quantity of MDMA for the purpose of sale or supply, a conviction be recorded and a sentence of four years imprisonment be imposed.

A period of 18 months be fixed as the non-parole period.

The sentence and the non-parole period commence as from 20 September 2001.

The non-parole period will expire on 19 March 2003.

This offender has pleaded guilty to one count alleging that:

“… on the 18^th day of April 2000 …[he] possessed a traffickable quantity of a prohibited substance, namely 3,4-Methylenedioxy-N, α-dimethylphenylethylamine (MDMA) for the purpose of sale or supply to any person”.

MDMA is popularly known as “ecstasy”.

The offender was committed to take his trial on 1 August 2000 in respect of charges of:

§Manufacturing methamphetamine
§Possessing MDMA for the purpose of sale or supply
§Supplying MDMA
§Possessing MDMA
§Possessing methamphetamine
§Attempting to pervert the course of justice
§Conspiring with 5 named persons and others to possess for supply a traffickable quantity of MDMA
§Conspiring with those persons to possess for supply a traffickable quantity of methamphetamine
§Possessing a traffickable quantity of methamphetamine for the purposes of sale or supply

A trial date was set to commence 11 April 2002. The trial did not commence as the Crown and the offender’s legal representatives agreed that the prior indictment would be withdrawn and the current indictment substituted. Upon arraignment on the substituted indictment, the accused entered the plea of guilty referred to above.

The indictment of 14 April 2002 upon which the offender now comes to be sentenced is, therefore, substantially different from the charges before the Magistrates Court upon which committal orders were made and also different from the indictment originally filed.

It follows that, in according weight to the plea of guilty as a mitigating factor, I am required to regard the plea as one entered at 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.

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Details

Case: [2002] ACTSC 66
Decision Date

CaseChat Overview and Summary

Nader Takalubegash was convicted of possessing a traffickable quantity of MDMA for the purpose of sale or supply. The case was heard in the Supreme Court of the Australian Capital Territory, and the decision was handed down by Justice Higgins on 17 July 2002. The legal issues involved determining the appropriate sentence considering the offender's plea of guilty, his remorse, and the impact of the sentence on his family. Additionally, the court had to weigh the seriousness of the offence and the need for appropriate punishment and deterrence.

Justice Higgins considered the offender's subjective factors, including his background, employment history, family situation, and remorse. The court also took into account the timeliness of the offender's plea of guilty, which was entered at the earliest practicable opportunity following the substitution of the indictment. The judge referred to the High Court decision in Cameron v The Queen, which emphasised the importance of considering the timing of a plea of guilty when determining the appropriate sentence discount. The court also considered relevant case law and sentencing guidelines for drug offences. The court determined that a head sentence of four years imprisonment was appropriate, with an 18-month non-parole period.

The final orders of the court were to record a conviction on the charge of possession of a traffickable quantity of MDMA for the purpose of sale or supply and to sentence Nader Takalubegash to four years imprisonment. The non-parole period was fixed at 18 months, and the sentence and non-parole period would commence from 20 September 2001, reflecting time spent in custody before sentence. The non-parole period would expire on 19 March 2003.

Orders