R v AA

Case [2021] NSWDC 112 1 April 2021

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AA [2021] NSWDC 112
Hearing dates: 26 February 2021
Date of orders: 1 April 2021
Decision date: 01 April 2021
Jurisdiction: Civil
Before: Weinstein SC DCJ
Decision:
Sentence

Catchwords:
Drug offences – illegal drug importation – commercial quantity – Dark Net – possession – supply – breach of bail – State and Commonwealth offences – disadvantage – addiction – cooperation with law enforcement agencies – mental health

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing) Procedure Act 1990
Criminal Code 1995 (Cth)
Criminal Code Regulations 2019 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)
Law Enforcement (Powers & Responsibilities) Act 2002 (NSW)

Cases Cited:
Attorney-General’s Application under s37 of the Crimes (Sentencing) Procedure Act 1990 No 1 of 2002 (2002) 56 NSWLR 146
Bonwick v R [2010] NSWCCA 177
Bugmy v The Queen (2013) 249 CLR 571
Chan, Lo and Nguyen, v R [2010] NSWCCA 153
Davidson v R [2009] NSWCCA 150
DPP (Cth) v Maxwell [2013] VSCA 50
DPP v De La Rosa [2010] NSWCCA 194
Jones v R (2010) 242 CLR 520
Leung v The Queen (2001) 207 CLR 584
Mansour v R [2011] NSWCCA 28
Markarian v The Queen [2005] HCA 25)
DPP (Cth) v Maxwell (2011) 31 VR 673
Muldrock v The Queen (2011) 244 CLR 120
Perkins v R [2018] NSWCCA 62
Petkos v R [2020] NSWCCA 55
R v Janse [2016] WASCR 17
R v Hill [2011] QCA 306
R v Laurentiu (1992) 63 A Crim R 402
R v Millwood [2012] NSWCCA 2
R v Muanchukingkan (1990) 52 A Crim R 354
R v Pham (2015) 256 CLR 550
Wong v R (2001) 207 CLR 584
Xiao v R [2018] NSWCCA 2
Zreika v R (2012) 223 A Crim R 460

Category: Sentence
Parties: Regina (Crown)
AA (Offender)
Representation:
Counsel:
Mr Macken (Crown)
Ms Jardim (Offender)

File Number(s): 2020/146434
Publication restriction: Non Publication Order with respect to the name of the offender or any information that may identify him.

Judgment

The offender AA, born in 1985, has pleaded guilty to the offence of:

Importing a commercial quantity of border controlled drug, namely approximately 24 litres of Gammabutyrolactone (GBL), contrary to section 307.1(1) of the Criminal Code 1995 (Cth) (the Criminal Code). The maximum penalty for this offence is life imprisonment and/or 7,500 Commonwealth penalty units ($1,575,000), or both (Sequence 1).

(the Commonwealth Offence)

He also asks me to take into account the following offence pursuant to section 16AB of the Crimes Act 1914 (Cth) (the Crimes Act).

Importing a border controlled drug, not a commercial quantity (being approximately 800 grams), namely GBL, contrary to section 307.4(1) of the Criminal Code. The maximum penalty for this offence is 2 years imprisonment and/or 400 Commonwealth penalty units ($84,000) (Sequence 5).

With respect to New South Wales State offences, the offender has pleaded guilty to:

Possessing prohibited drug, namely 0.16 grams of Methylamphetamine, contrary to s10(1) of 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.

Continue reading R v AA

Details

AGLC: R v AA [2021] NSWDC 112
Case: [2021] NSWDC 112
Decision Date: 01 April 2021

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Citations

R v AA [2021] NSWDC 112

Cases Citing This Decision

No citing cases yet.

Cases Cited

Petkos v R [2020] NSWCCA 55
Citation 1 (Para 82)

…That remark was adopted by Hamill J in Petkos v R [2020] NSWCCA 55, when his Honour said that at the heart of the decision in Maxwell was the uncontroversial proposition that the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. In this particular case, it…
Wong v R [2018] NSWCCA 263
Citation 2 (Para 145)

…ch was rejected). The criminality involved in Davidson v R [2009] NSWCCA 150 is significantly higher, with a finding of guilt after trial. Wong v R [2018] NSWCCA 263 has limited, if any application given the different drug involved and thus the difference in value and likely reward. The offender in R v Janse [2016]…
Perkins v R [2018] NSWCCA 62
Citation 3 (Para 125)

…fender’s position does not bear equal responsibility with an offender who had a normal or advantaged childhood: see also Fullerton J in Perkins v R [2018] NSWCCA 62 at 99, where Her Honour said “ the insidious effects of exposure to family and domestic violence on children in their formative years, and the potentia…
Hughes v R [2018] NSWCCA 2
Citation 4 (Para 95)

…The decision in Xiao v R [2018] NSWCCA 2 puts beyond doubt the requirement that the utilitarian benefit of a plea of guilty, as well as the subjective features, must be taken into account by the sentencing court.…
R v Pham [2015] HCA 39
Citation 5 (Para 69)

…In The Queen v Pham [2015] HCA 39 at [32]-[37], the High Court confirmed that drug weight will not automatically be the “controlling” factor relevant to assessment of the seriousness of the offence, but held that it will usually be relevant to the assessment of the seriousness of the offence.…
Bugmy v The Queen [2013] HCA 37
Citation 6 (Para 125)

…effects of this disadvantage do not diminish with the passage of time and should be given full weight in this sentencing exercise: Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at 69, where her Honour said that a person in the…
DPP (Cth) v Maxwell [2013] VSCA 50
Citation 7

…20 Leung v The Queen (2001) 207 CLR 584 Mansour v R [2011] NSWCCA 28 Markarian v The Queen [2005] HCA 25) DPP (Cth) v Maxwell (2011) 31 VR 673 Muldrock v The Queen (2011) 244 CLR 120 Perkins v R [2018] NSWCCA 62 Petkos v R [2020] NSWCCA 55 R v Janse [2016] WASCR 17 R v Hill [2011] QCA 306 R v Laurentiu (1992) 63 A…
R v Millwood [2012] NSWCCA 2
Citation 8 (Para 125)

…in this sentencing exercise: Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at 69, where her Honour said that a person in the offender’s position does not bear equal responsibility with an offender who had a normal or advanta…
R v Hill, Bakir, Gray and Broad; ex parte [2011] QCA 306
Citation 9

…ck v The Queen (2011) 244 CLR 120 Perkins v R [2018] NSWCCA 62 Petkos v R [2020] NSWCCA 55 R v Janse [2016] WASCR 17 R v Hill [2011] QCA 306 R v Laurentiu (1992) 63 A Crim R 402 R v Millwood [2012] NSWCCA 2 R v Muanchukingkan (1990) 52 A Crim R 354 R v Pham (2015) 256 CLR 550 Wong v R (2001) 207 CLR 584 Xiao v R…
Muldrock v The Queen [2011] HCA 39
Citation 10 (Para 138)

…As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:…
Mansour v R [2011] NSWCCA 28
Citation 11 (Para 116)

…In relation to the general impact of this offence on the community, the Crown refers to the case of Mansour v R [2011] NSWCCA 28, where Price J concluded that a failure to have regard for public safety is an inherent characteristic of supplying (and importing) a prohibited drug. It is not submitted by the Crown tha…
Hili v The Queen [2010] HCA 45
Citation 12 (Para 142)

…s can be considered that may serve to illustrate (although not define) the possible range of sentences available: see R v Pham ; Hili v R ; Jones v R (2010) 242 CLR 520, 537.…
R v Nikolovska [2010] NSWCCA 153
Citation 13 (Para 80)

…d by using his own home address meant that he was the person directly exposed to the risk of detection. As was observed in Chan, Lo and Nguyen, v R [2010] NSWCCA 153 at 126, “[r]isk is usually the hallmark of a person lower in the hierarchy”. I add that it is also the hallmark of unsophisticated behaviour, particula…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 14 (Para 124)

…In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are to some extent present here. In particular, I find that the state of the offender’s mental health (and his inter-realted drug addiction) likely contributed to, and is linked to the commission of the offences. In my opinion, whilst the offe…
Bonwick v R [2010] NSWCCA 177
Citation 15 (Para 64)

…, Ms Jardim submits that the Court can appropriately take into account the maximum sentence in the Local Court as a matter in mitigation: Bonwick v R [2010] NSWCCA 177, Zreika v R (2012) 223 A Crim R 460. She notes that the offences are not indictable.…
R v Davidson [2009] NSWCCA 150
Citation 16 (Para 145)

…ase. In Maxwell , the offender had alleged that she had ordered the GBL under duress (which was rejected). The criminality involved in Davidson v R [2009] NSWCCA 150 is significantly higher, with a finding of guilt after trial. Wong v R [2018] NSWCCA 263 has limited, if any application given the different drug invol…
Markarian v The Queen [2005] HCA 25
Citation 17 (Para 139)

…evant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen [2005] HCA 25.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 18 (Para 127)

…As explained by Spigelman CJ in Attorney-General’s Application under s37 of the Crimes (Sentencing) Procedure Act 1999 No 1 of 2002 ( 2002) 56 NSWLR 146 at [42]:…
Wong v The Queen [2001] HCA 64
Citation 19 (Para 71)

…one of the significant factors in determining the seriousness of an offence but not the chief consideration: see Wong v The Queen ; Leung v The Queen (2001) 207 CLR 584 at 67 and 70. Rather, the matters to be taken into account in differentiating between cases include the quantity of the drug, the offender’s knowledg…
Power v The Queen [1974] HCA 26
Citation 20 (Para 148)

…ave also been guided by the approach of McHugh J in Markarian and have had regard to the general principles identified by the High Court in Power v R [1974] HCA 26.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 68)
Crimes Act 1914 (Cth)
1 mention
Criminal Code Regulations 2019 (Cth)
1 mention
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v AA [2021] NSWDC 112
Hearing dates:	26 February 2021
Date of orders:	1 April 2021
Decision date:	01 April 2021
Jurisdiction:	Civil
Before:	Weinstein SC DCJ
Decision:	Sentence
Catchwords:	Drug offences – illegal drug importation – commercial quantity – Dark Net – possession – supply – breach of bail – State and Commonwealth offences – disadvantage – addiction – cooperation with law enforcement agencies – mental health
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing) Procedure Act 1990 Criminal Code 1995 (Cth) Criminal Code Regulations 2019 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Law Enforcement (Powers & Responsibilities) Act 2002 (NSW)
Cases Cited:	Attorney-General’s Application under s37 of the Crimes (Sentencing) Procedure Act 1990 No 1 of 2002 (2002) 56 NSWLR 146 Bonwick v R [2010] NSWCCA 177 Bugmy v The Queen (2013) 249 CLR 571 Chan, Lo and Nguyen, v R [2010] NSWCCA 153 Davidson v R [2009] NSWCCA 150 DPP (Cth) v Maxwell [2013] VSCA 50 DPP v De La Rosa [2010] NSWCCA 194 Jones v R (2010) 242 CLR 520 Leung v The Queen (2001) 207 CLR 584 Mansour v R [2011] NSWCCA 28 Markarian v The Queen [2005] HCA 25) DPP (Cth) v Maxwell (2011) 31 VR 673 Muldrock v The Queen (2011) 244 CLR 120 Perkins v R [2018] NSWCCA 62 Petkos v R [2020] NSWCCA 55 R v Janse [2016] WASCR 17 R v Hill [2011] QCA 306 R v Laurentiu (1992) 63 A Crim R 402 R v Millwood [2012] NSWCCA 2 R v Muanchukingkan (1990) 52 A Crim R 354 R v Pham (2015) 256 CLR 550 Wong v R (2001) 207 CLR 584 Xiao v R [2018] NSWCCA 2 Zreika v R (2012) 223 A Crim R 460
Category:	Sentence
Parties:	Regina (Crown) AA (Offender)
Representation:	Counsel: Mr Macken (Crown) Ms Jardim (Offender)
File Number(s):	2020/146434
Publication restriction:	Non Publication Order with respect to the name of the offender or any information that may identify him.