Site Logo

R v Ruzehaji [2018] SASCFC 139

appeal against sentence — one count of trafficking in a commercial quantity of a controlled drug and one count of trafficking in a marketable quantity of a controlled drug offences contrary to s 302.3(1) and s 11.2A of Commonwealth Criminal Code, and one count of pre-trafficking in a controlled precursor offence contrary to s 306.4(1) and s 11.2A of Commonwealth Criminal Code — offences related to 879.7g of pure methylamphetamine, 1010.9g of pure cocaine and approximately 400g of pseudoephedrine respectively — original sentence imposed 13 years’ imprisonment with 7 year and 6 month non-parole period — notice of appeal received out of time — particulars of offender’s appeal related to whether evidence provided a basis for the sentencing judge to find that the offender “was at the higher end of the chain of command” and whether offender stood to gain substantial sum of money — application of state sentencing legislation — s 16A(2)(a) — appropriate to take into account by phrase “known to the court” in s 16A(2) in sentence many matters urged in sentencing hearings which are not proved by admissible evidence or formally admitted — this held by plurality of High Court in Weinberger v The Queen (2003) 212 CLR 629, 635 [21] — in South Australia express power in s 12 of the Sentencing Act 2017 (SA) is also available to courts in their disposition of Commonwealth charges as it is picked up and applied by s 79 of the Judiciary Act 1903 (Cth) — Commonwealth Parliament held not to have “otherwise provided” for matters within s 12 of the Sentencing Act within meaning of s 79 of the Judiciary Actnature and circumstances of the offence —— sentencing judge used words at the “higher end of a chain of command” in sentencing remarks in sense of at the higher end of a drug trafficking hierarchy — not to deny application of precepts in Olbrich which require proof as to role and status of particular defendant on particular occasion in particular cases — stress that it is concept of general existence of drug trafficking hierarchies with various roles rather than what a person actually did on a particular occasion that may be taken into account under provisions such as s 12 of Sentencing Act 2017 (SA) — no more than permissible statement of the obvious — person found in possession of multiple types of illicit drugs of total street value between $2,717,860 and $2,922,500 is at different position in drug trafficking hierarchy than person in possession of small number of packaged “street deals” of same illicit drugs of $1,000 value — equally obvious that, other things being equal, the former person will be visited with greater penalty than the latter — while circumstances surrounding possession can differ here offender was the “leading light” for such person(s) who were assisting in moving drugs — no evidence of anyone else ordering about or supervising offender — unknown how long after offender commenced leasing locker that drugs came to be stored there but not the case that it must be taken to be the least possible time before discovery by police — comment by sentencing judge that offender “stood to gain a substantial sum of money for [offender’s] involvement in the crime” no more than permissible statement of the obvious — as matter of human behaviour, person prepared to take risk of large prison sentence well known to follow conviction of trafficking in large amounts and values of drugs will only do so for appropriately substantial profit or reward — extension of time granted — appeal dismissed
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.

© 2023 The National Judicial College of Australia (NJCA). Powered by

Privacy Policy|Terms and Conditions