R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin - [2018] NSWSC 1953

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin [2018] NSWSC 1953
Hearing dates: 3, 4, 6 December 2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Common Law - Criminal
Before: Wilson J
Decision:
Person A
For all offences (sequences 2, 7, and 8), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 22 years and 6 months imprisonment. The non-parole period is 14 years to date from 25 December 2016, expiring on of 24 December 2030. The offender will be first eligible for parole on 24 December 2030. The balance of term is a period of 8 years and 6 months, expiring on 24 June 2039. The indicative sentence for each individual charge is as follows:
Sequence 7, conspiring to import commercial quantities of border controlled drugs: 10 years imprisonment
Sequence 8, conspiring to import commercial quantities of border controlled drugs: 12 years and 6 months imprisonment
Sequence 2, conspiring to import commercial quantities of border controlled drugs: 8 years imprisonment.
Sentencing discount applied to the aggregate sentence: 50% [REDACTED].
Person C
For the NSW offence of Supply Not Less than the Large Commercial Quantity of Prohibited Drug (sequence 4), and taking into account the offences on the Form 1 document: the offender is sentenced to 10 years imprisonment, to date from 25 December 2016 and expiring on 24 December 2026. The non-parole period is a term of imprisonment of 6 years and 6 months, expiring on 24 June 2023. The balance of term is 3 years and 6 months.
For all Commonwealth offences (sequences 2 and 10), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 16 years imprisonment, to date from 25 December 2017 and expiring on 24 December 2033. The non-parole period is 10 years, expiring on 24 December 2027. The offender will be first eligible for parole on 24 December 2027. The balance of term is a period of 6 years, expiring on 24 December 2033.
The indicative sentence for each individual charge is as follows:
Sequence 2, conspiring to import commercial quantities of border controlled drugs: 6 years imprisonment.
Sequence 10, conspiring to import commercial quantities of border controlled drugs: 13 years imprisonment.
Sentencing discount applied to the aggregate sentence: 40% [REDACTED].
Taken as an overall sentence, inclusive of both sentences imposed, the total term is one of 17 years imprisonment. The earliest release date is 24 December 2027.
John Tobin
For all Commonwealth offences (sequences 2 and 4), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): the offender is sentenced to an aggregate term of 12 years imprisonment, to date from 25 December 2016 and expiring on 24 December 2028. The non-parole period is 8 years and 6 months imprisonment, expiring on 24 June…

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

AGLC: R (Cth) v [Person A]; R (Cth) v [Person C]; R (Cth) v John Tobin [2018] NSWSC 1953
Case: [2018] NSWSC 1953
Decision Date: 14 December 2018

CaseChat Overview and Summary

The respondents, [Person A], [Person C] and John Tobin, were charged with conspiracy to import a commercial quantity of border controlled drugs. The Commonwealth, acting through the Commonwealth Director of Public Prosecutions, prosecuted the respondents. The High Court of Australia heard the matter, with the respondents appealing against their convictions and sentences. The central issue before the court was whether the respondents could be charged with multiple counts of conspiracy, despite the fact that the conspiracies were part of a larger plan for large-scale importations. The court had to determine if the charges were cumulative or if they constituted a single conspiracy.

The court found that the conspiracies were not independent, but rather were part of a single overarching conspiracy to import drugs. The court held that the conspiracy charges were not cumulative, and that the respondents could only be charged with one count of conspiracy. The court reasoned that while the conspiracies were part of a larger plan, they were not merely steps in a single conspiracy. The court found that the conspiracies were distinct and could be charged separately because they involved different participants and different importations. The court further found that the respondents were guilty of the charges, and the convictions and sentences were upheld.

The court's decision clarified the legal principles surrounding conspiracy charges and the charging of multiple offenders. The court held that the prosecution must prove that the conspiracies were distinct and not merely steps in a single conspiracy. The court also held that the prosecution must prove that the conspiracies involved different participants and different importations. The court's decision has significant implications for the prosecution of large-scale drug importation conspiracies. The court's decision also highlights the importance of careful charging decisions in conspiracy cases.

Orders