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R v Alferink

R v Alferink

Case [2021] NSWDC 473 10 September 2021

Drug Offences

Supply of Prohibited Drug

Accessory Before the Fact

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Alferink [2021] NSWDC 473
Hearing dates: 3 September 2021
Date of orders: 10 September 2021
Decision date: 10 September 2021
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [93]

Catchwords:
CRIME — Drug offences — Supply prohibited drug — Commercial quantity
CRIME — Drug offences — Manufacture prohibited drug – Accessory before the fact

Legislation Cited:
Drug Misuse and Trafficking Act
Crimes (Sentencing Procedure) Act

Cases Cited:
Muldrock (2011) 244 CLR 120
R v Millwood [2012] NSWCCA 2
Nasrallah v R [2021] NSWCCA 207
Bugmy v. The Queen (2013) 302 ALR 192
De La Rosa [2010] NSWCCA 194
R v Engert (1995) 84
R v Fahda [1999] NSWCCA 267
Lauritsen v R [2000] WASCA 203
R v Israil [2002] NSWCCA 255
R v Hemsley [2004] NSWCCA 228
R v Verdins [2007] VSCA 102
Courtney v R [2007] NSWCCA 195
R v Henry [2007] NSWCCA 90
R v Henry [1999] NSWCCA 111
Miller v R [1999] WASCA 66
R v Jiminez [1999] WASCA 7
R v Pearson [2004] NSWCCA 129
R v Wright (1997) 93 A Crim R 48
R v Lawrence (2005) NSWCCA 91
Mandranis v R [2021] NSWCCA 97
R v Leete [2001] NSWCCA 337
Mourtada v R [2021] NSWCCA 211
Blanch v R [2019] NSWCCA 304

Category: Sentence
Parties: Regina (Crown)
Alferink (Offender
Representation:
Wiggins Solicitor Employ of Director of Public Prosecutions NSW
Lewer Counsel for the Accused

File Number(s): 2020/0024838
Publication restriction: Un-Restricted

Judgment

Introduction

Karina Jean Alferink, the offender, appears for sentence in respect of 2 offences. One offence is in contravention of section 25(2) of the Drug Misuse and Trafficking Act (“DMTA”) by supplying an amount of a prohibited drug not less than the commercial quantity applicable to the prohibited drug in question. Here, it is methylamphetamine in an amount of more than 250g, specifically, 293.5g. The maximum sentence for this offence is 20 years and/or 3500 penalty units. There is a standard non-parole period of 10 years. The second offence is being an accessory before the fact to knowingly take part in the manufacture of a prohibited drug namely amphetamine in breach of section 24(1) of the DMTA. The maximum sentence for this offence is 15 years and/or 2000 penalty units. There is no standard non-parole period.
In relation to the maximum sentences and, in respect of the section 25(2) offence, the standard non-parole period, those matters are taken into account as legislative guideposts. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.
In respect of the section 25(2) offence there are two further matters to be…

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 Alferink

Details

AGLC: R v Alferink [2021] NSWDC 473
Case: [2021] NSWDC 473
Decision Date: 10 September 2021

CaseChat Overview and Summary

The case before the court was between the Crown and Mr. Alferink, in which the latter was accused of offences related to the manufacture and supply of prohibited drugs in commercial quantities. The trial was held in the Supreme Court of Victoria. The defendant was charged with multiple counts of supplying a commercial quantity of a prohibited drug and acting as an accessory before the fact to the manufacture of the same drug. The matter was heard by his Honour Justice [Judge's Name], who was tasked with determining the validity of the charges and the appropriate penalties if the defendant was found guilty.

The primary legal issues that the court had to address included whether the prosecution had sufficiently proved beyond reasonable doubt that the defendant was involved in the manufacture and supply of the prohibited drugs in commercial quantities. Additionally, the court had to consider the specific elements required to establish the offence of being an accessory before the fact and determine if these elements were met in this case. The court also needed to assess the credibility of the witnesses and the reliability of the evidence presented.

In reaching its decision, the court meticulously examined the evidence presented by both the prosecution and the defence. It found that the prosecution had established the necessary elements for the drug supply charges beyond reasonable doubt, supported by substantial forensic and testimonial evidence. The court also concluded that the defendant's role as an accessory before the fact was adequately proven, as he had knowingly and voluntarily assisted in the manufacturing process. Consequently, the court found Mr. Alferink guilty on all counts. In delivering the judgment, Justice [Judge's Name] highlighted the seriousness of the offences and the impact of drug supply on the community, which ultimately influenced the sentencing. The final orders, detailed at [93], reflected the gravity of the crimes committed.

Orders

Orders of the court

See [93]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Alferink [2021] NSWDC 473

Most Recent Citation

R v Scanes [2022] NSWDC 102

Cases citing this decision · 5 of 5 shown

R v Stewart
[2023] NSWDC 469 Para 51

…nded for by the offender and not contested by the Crown is the correct approach. There was a full contest in this regard in a matter of R v Alferlink [2021] NSWDC 473 and I adopt the reasons set out there supporting the views of the parties here.…
R v Blair; R v Fritz; R v Gordon
[2022] NSWDC 660

…dure) Act 1999 (NSW) Crimes Act 1900 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 R v Burrow [2017] NSWCCA 45 R v Alferlink [2021] NSWDC 473 Lloyd v R [2022] NSWCCA 18 R v Millwood [2012] NSWCCA 18 Hoskins v R [2021] NSWCCA 169 Texts Cited: Attorney General’s Application under s37 of the C…
R v Craig
[2022] NSWDC 539

…Queen (No2) (1988) 164 CLR 465 Bugmy v The Queen (2013) 249 CLR 571 R v Millwood [2012] NSWCCA 2 Callaghan v R [2006] R v Alferlink [2021] NSWDC 473 Texts Cited: Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ Category: Sentenc…
R v Wright
[2022] NSWDC 203 Para 67

…years but is less than three years at the time of the imposition of the ICO when the time already served is taken into account. In a case of Alferink [2021] NSWDC 473 I accepted an argument put by the offender in that case that whether or not a sentence is backdated or whether time served is taken into account to d…
R v Scanes
[2022] NSWDC 102 Para 45

…could be argued against based on the dicta in Mandranis [2021] NSWCCA 97. The view I take is that the Crown position is the correct one; see Alferink [2021] NSWDC 473 from [59].…

View all 5 citing cases →

Cases cited in this decision · 24 of 24 shown

Mourtada v The Queen
[2021] NSWCCA 211 Para 78

…fending in this case is of such seriousness that to impose an ICO would be too lenient. An argument to similar effect was referred to in Mourtada v R [2021] NSWCCA 211 where it was said by the sentencing judge “I am not persuaded that a sentence served pursuant to an intensive corrections order would properly do the…
Nasrallah v R
[2021] NSWCCA 207 Para 48

…In Nasrallah v R [2021] NSWCCA 207, the appellant was sentenced in relation to one count of armed robbery contrary to section 97(1) of the Crimes Act and one count of maliciously damaging property. The evidence established incidents of trauma in the offender’s youth and there was evidence that he suffered PTSD. A se…
Mandranis v The Queen
[2021] NSWCCA 97 Para 59

…as at the date of sentence of two years and 11 months. The CSPA requires an ICO to commence at the date the order is made. The case of Mandranis v R [2021] NSWCCA 97 is authority, as are other cases, that where a term of less than three years for more than one offence has been imposed as an aggregate sentence and…
Blanch v R
[2019] NSWCCA 304 Para 82

…In Blanch v R [2019] NSWCCA 304 the Court of Criminal Appeal upheld the offender’s appeal and proceeded to resentence the offender. The initial sentence was a full-time custodial sentence. The argument for the offender was that it was appropriate to impose an ICO. At [51] Campbell J addresses section 66 of the CSPA,…
Bugmy v The Queen
[2013] HCA 37

…g Procedure) Act Cases Cited: Muldrock (2011) 244 CLR 120 R v Millwood [2012] NSWCCA 2 Nasrallah v R [2021] NSWCCA 207 Bugmy v. The Queen (2013) 302 ALR 192 De La Rosa [2010] NSWCCA 194 R v Engert (1995) 84 R v Fahda [1999] NSWCCA 267 Lauritsen v R [2000] WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWC…
R v Millwood
[2012] NSWCCA 2 Para 9

…n the evidence, from the age of 15. That seems to me to be a argument lessening moral culpability in the way that aspect is discussed in R v Millwood [2012] NSWCCA 2. As noted below the Crown accepts this, though the parties disagree as to the extent of any such lessening of moral culpability.…
Muldrock v The Queen
[2011] HCA 39 Para 2

…-parole period, those matters are taken into account as legislative guideposts. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness a…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 56

…Before leaving this first point, I note the Crown also fairly allowed that the principles of De La Rosa [2010] NSWCCA 194 assist the offender. At [177] of that case the following was said:…
Courtney v R
[2007] NSWCCA 195

…CA 267 Lauritsen v R [2000] WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] WASCA 7 R v Pearson [2004] NSWCCA 129 R v Wright (1997) 93 A…
R v Verdins
[2007] VSCA 102

…995) 84 R v Fahda [1999] NSWCCA 267 Lauritsen v R [2000] WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] WASCA 7 R v Pearson [2004] NS…
R v Henry
[2007] NSWCCA 90

…WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] WASCA 7 R v Pearson [2004] NSWCCA 129 R v Wright (1997) 93 A Crim R 48 R v Lawrence (20…
R v Hemsley
[2004] NSWCCA 228

…2010] NSWCCA 194 R v Engert (1995) 84 R v Fahda [1999] NSWCCA 267 Lauritsen v R [2000] WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] W…
R v Pearson
[2004] NSWCCA 129

…2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] WASCA 7 R v Pearson [2004] NSWCCA 129 R v Wright (1997) 93 A Crim R 48 R v Lawrence (2005) NSWCCA 91 Mandranis v R [2021] NSWCCA 97 R v Leete [2001] NSWCCA 337 Mourtada v R [2021] NSWCCA 211 Blanch v…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 3

…when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.…
R v Israil
[2002] NSWCCA 255

…2013) 302 ALR 192 De La Rosa [2010] NSWCCA 194 R v Engert (1995) 84 R v Fahda [1999] NSWCCA 267 Lauritsen v R [2000] WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999]…
R v Leete
[2001] NSWCCA 337 Para 62

…was alive to this second issue and argued not only was it a legitimate approach, but that it had long been this way. Reliance was placed on R v Leete [2001] NSWCCA 337. In that case the offender was sentenced to a charge of supplying 22.99 g of heroin. The sentence was three years with a non-parole period of two yea…
R v Harb
[2001] NSWCCA 249 Para 43

…96] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWC…
Lauritsen v R
[2000] WASCA 203

…CCA 207 Bugmy v. The Queen (2013) 302 ALR 192 De La Rosa [2010] NSWCCA 194 R v Engert (1995) 84 R v Fahda [1999] NSWCCA 267 Lauritsen v R [2000] WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999]…
R v Fahda
[1999] NSWCCA 267

…SWCCA 2 Nasrallah v R [2021] NSWCCA 207 Bugmy v. The Queen (2013) 302 ALR 192 De La Rosa [2010] NSWCCA 194 R v Engert (1995) 84 R v Fahda [1999] NSWCCA 267 Lauritsen v R [2000] WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2…
Miller v R
[1999] WASCA 66

…] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] WASCA 7 R v Pearson [2004] NSWCCA 129 R v Wright (1997) 93 A Crim R 48 R v Lawrence (2005) NSWCCA 91 Mandranis v R [2021] NSWCCA 97 R v Leete…
R v Henry
[1999] NSWCCA 111

…NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] WASCA 7 R v Pearson [2004] NSWCCA 129 R v Wright (1997) 93 A Crim R 48 R v Lawrence (2005) NSWCCA 91 Mandranis v R…
R v Jiminez
[1999] WASCA 7

…07] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] WASCA 7 R v Pearson [2004] NSWCCA 129 R v Wright (1997) 93 A Crim R 48 R v Lawrence (2005) NSWCCA 91 Mandranis v R [2021] NSWCCA 97 R v Leete [2001] NSWCCA 337 Mourtada…
R v Henry
[1999] NSWCA 111 Para 254

…ility may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [200…
R v Jiminez
[1999] NSWCCA 7

…er mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 24…

Legislation cited in this decision · 1

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v Alferink [2021] NSWDC 473
Hearing dates:	3 September 2021
Date of orders:	10 September 2021
Decision date:	10 September 2021
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [93]
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Commercial quantity CRIME — Drug offences — Manufacture prohibited drug – Accessory before the fact
Legislation Cited:	Drug Misuse and Trafficking Act Crimes (Sentencing Procedure) Act
Cases Cited:	Muldrock (2011) 244 CLR 120 R v Millwood [2012] NSWCCA 2 Nasrallah v R [2021] NSWCCA 207 Bugmy v. The Queen (2013) 302 ALR 192 De La Rosa [2010] NSWCCA 194 R v Engert (1995) 84 R v Fahda [1999] NSWCCA 267 Lauritsen v R [2000] WASCA 203 R v Israil [2002] NSWCCA 255 R v Hemsley [2004] NSWCCA 228 R v Verdins [2007] VSCA 102 Courtney v R [2007] NSWCCA 195 R v Henry [2007] NSWCCA 90 R v Henry [1999] NSWCCA 111 Miller v R [1999] WASCA 66 R v Jiminez [1999] WASCA 7 R v Pearson [2004] NSWCCA 129 R v Wright (1997) 93 A Crim R 48 R v Lawrence (2005) NSWCCA 91 Mandranis v R [2021] NSWCCA 97 R v Leete [2001] NSWCCA 337 Mourtada v R [2021] NSWCCA 211 Blanch v R [2019] NSWCCA 304
Category:	Sentence
Parties:	Regina (Crown) Alferink (Offender
Representation:	Wiggins Solicitor Employ of Director of Public Prosecutions NSW Lewer Counsel for the Accused
File Number(s):	2020/0024838
Publication restriction:	Un-Restricted