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R v Nchouki [2022] ACTSC 342

The offender was sentenced following 1 count of using a carriage service in a way reasonable persons would regard as being menacing, harassing, or offensive contrary to s 474.17(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offender spoke with their younger brother on the telephone. AT the time, offender was aware that the police might be intercepting and monitoring their telephone calls. Offending involved offender making threats of sexual violence directed at a police officer’s wife, made slurs about the officer’s sexuality and sexual behaviour, including accusing them of paedophilia, accused them of beating their wife, used sexually explicit language about them in a derogatory way, and recorded a threat of grievous violence directed towards the officer. The offensive, menacing or harassing nature of the conduct arose because of the risk known to offender that the comments would be heard by police. The remarks were directed at a police officer. They were not, however, made directly. They were done with the intention, if it was heard by the police officer, of menacing or offending the officer. Offending was in the mid-range of objective seriousness.

Antecedents: Offender has a criminal history in the ACT. Offending prior to 2017 primarily consists of driving-related offences. From 2017 offending includes drug trafficking and possession offences, weapons offences, conspiracy to pervert the course of justice and further driving related offences. Offender was a former president of a chapter of an ACT outlaw motorcycle gang.

Specific Deterrence: Offender has a criminal history in the ACT. Offending includes drug trafficking and possession offences, weapons offences, conspiracy to pervert the course of justice and further driving related offences. Offender was a former president of a chapter of an ACT outlaw motorcycle gang. Offender has a significant criminal history yet that failed to deter them from the conduct in question. Offender has demonstrated no remorse or acceptance of the wrongfulness of the conduct. Rather, the plea appears to be a totally pragmatic one, not reflective of remorse, contrition or a desire to change. The picture of offender’s subjective circumstances is one of loyalty and diligence in relation to their family, hard work and a degree of success in their business. However, that positive picture is significantly qualified by offender’s criminal history, past significant association with an outlaw motorcycle gang, history of drug use and their capacity to engage in menacing conduct. Offender’s prospects of rehabilitation must be regarded as modest or guarded.

Offender sentenced to 5 months imprisonment to be released after 3 months on recognizance of $100 to be of good behaviour for 2 years.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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