R v Albanese - [2015] NSWDC 170

District Court

New South Wales

Medium Neutral Citation: R v Albanese [2015] NSWDC 170
Hearing dates: 6 February 2015
Decision date: 12 February 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Sentenced to a term of imprisonment of 4 years with a non- parole period of 2 years.

Catchwords: Criminal - sentence, attempt to possess unlawfully imported border controlled drug, early plea, cooperation.
Legislation Cited: Commonwealth Crimes Act 1914
Criminal Code (Cth) 1995
Cases Cited: Day v R [2009] SASC 84
DPP (Cth) v De La Rosa [2010] NSWCCA 194
El Hani [2004] NSWCCA 62
Hili v R; Jones v R [2010] HCA 45
Markarian v R [2005] HCA 25
Olbach v R (2005) 158 A Crim R 586
R v Liu [2005] NSWCCA 378
RCW v R (No 2) [2014] NSWCCA 190
SZ (2007) 168 A Crim R 249
Sukkar v R (2006) 172 A Crim R 151
Tiknius v R (2011) 2001 A Crim R 36
Category: Sentence
Parties: Director of Public Prosecutions
Brian Lee Albanese - Offender
Representation: Solicitors:
Director of Public Prosecutions (Cth)
Watsons Lawyers - Offender

File Number(s): 2014/86987

sentence

HIS HONOUR: Brian Lee Albanese appears today for sentence in relation to an offence for which he was committed for sentence, but for which he was also arraigned on indictment, alleging that he on or about 21 March 2014 in the State of New South Wales did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely, methamphetamine and the quantity being a commercial quantity.
The maximum penalty for the offence to which the prisoner has pleaded guilty is imprisonment for ‘life’ and or a fine of $1.275 million.
The offence is one contrary to s 307.5 Criminal Code (Cth), according to the Crown’s written submissions, “by virtue of s 11.1 of the Code.”
As I said, the prisoner pleaded guilty at the Local Court. There is some suggestion of some delay in the material specifically addressed by learned counsel for the prisoner. It seems to me, as I will expose when I deal with some Crown submissions, that in accordance with the practice in New South Wales in Commonwealth matters, a discount of 25% upon the otherwise appropriate sentence is appropriate to recognise the facilitation of the course of justice by the prisoner. He has facilitated the court of justice with his admissions as well.
The statement of facts are a detailed document. Some aspects of that detail need to be repeated, some aspects need not.
I start by noting that the prisoner is citizen of the United States of America. He arrived in Australia, as I understand it, on 18 March 2014. It is clear on the evidence that he had come to Australia for the purpose, by arrangement as set out in the facts which I will deal with shortly with another man, to receive a package that he understood had been sent to Australia.
The issue of what he knew,…

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 Albanese

Details

AGLC: R v Albanese [2015] NSWDC 170
Case: [2015] NSWDC 170
Decision Date: 12 February 2015

CaseChat Overview and Summary

Albanese, the respondent, was charged with an offence involving the attempted possession of unlawfully imported border controlled drugs. The case was heard in the Supreme Court. The prosecution alleged that Albanese attempted to possess a quantity of a controlled drug that had been imported into Australia without the necessary authorisation. Albanese pleaded guilty to the charge and the court was required to determine an appropriate sentence, taking into account various factors including the nature of the offence, Albanese's plea, and his level of cooperation with authorities.

The court considered the legal issues surrounding the appropriate sentence for Albanese's offence. The primary issue was the determination of the appropriate term and non-parole period, given the nature of the offence, Albanese's early guilty plea, and his level of cooperation. The court also had to consider the relevant sentencing principles, including the need for general deterrence and the protection of the community.

The court found that the offence involved significant criminal conduct, as it related to the attempted possession of a border controlled drug, which carries serious implications for public health and safety. However, the court also acknowledged Albanese's early guilty plea and his cooperation with authorities, which were mitigating factors. The court ultimately decided that a term of imprisonment of 4 years with a non-parole period of 2 years was appropriate, balancing the need for punishment and deterrence with the mitigating factors present in the case. The court imposed this sentence on Albanese, reflecting the seriousness of the offence while also taking into account the mitigating factors.

Orders

Orders of the court

Sentenced to a term of imprisonment of 4 years with a non- parole period of 2 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Albanese [2015] NSWDC 170
Hearing dates:	6 February 2015
Decision date:	12 February 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Sentenced to a term of imprisonment of 4 years with a non- parole period of 2 years.
Catchwords:	Criminal - sentence, attempt to possess unlawfully imported border controlled drug, early plea, cooperation.
Legislation Cited:	Commonwealth Crimes Act 1914 Criminal Code (Cth) 1995
Cases Cited:	Day v R [2009] SASC 84 DPP (Cth) v De La Rosa [2010] NSWCCA 194 El Hani [2004] NSWCCA 62 Hili v R; Jones v R [2010] HCA 45 Markarian v R [2005] HCA 25 Olbach v R (2005) 158 A Crim R 586 R v Liu [2005] NSWCCA 378 RCW v R (No 2) [2014] NSWCCA 190 SZ (2007) 168 A Crim R 249 Sukkar v R (2006) 172 A Crim R 151 Tiknius v R (2011) 2001 A Crim R 36
Category:	Sentence
Parties:	Director of Public Prosecutions Brian Lee Albanese - Offender
Representation:	Solicitors: Director of Public Prosecutions (Cth) Watsons Lawyers - Offender
File Number(s):	2014/86987