R v Araya - [2016] NSWDC 430

District Court

New South Wales

Medium Neutral Citation: R v ARAYA [2016] NSWDC 430
Hearing dates: 9 December 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Convicted: Sentenced to a term of imprisonment of 3 years with a non-parole period of 1 year 8 months.

Catchwords: Criminal – Sentence, offer a bribe to a member of the NSW Police Force, on parole.
Legislation Cited: Crimes (Sentencing and Procedure) Act 1999
Police Act 1900
Cases Cited: R v Callaghan [2006] HCA
R v Duong [1999] NSWCCA 353
R v Pengallo (1991) 56 A Crim R 441
R v RCW (No 2) [2014] NSWCCA 190
R v Taouk (1992) 65 A Crim R 387
The Queen v Kilic [2016] HCA 48
Veen (No 2) v The Queen (1988) 164 CLR 465
Category: Sentence
Parties: Director of Public Prosecutions
Gustavo Henry Araya - Offender
Representation:
Counsel:
Solicitors:
Director of Public Prosecutions
Ms Heathcote, Lawyer – Offender

File Number(s): 2014/82759

sentence

HIS HONOUR: Gustavo Henry Araya was arraigned before me and tried by jury in relation to four counts on an indictment. Count 1 alleged that he on 18 March 2014 at Cabarita supplied a prohibited drug, namely methylamphetamine, in an amount that was not less than a large commercial quantity applicable to that prohibited drug. Count 2 was an allegation that he on the same date at the same place supplied a prohibited drug, namely ephedrine. Count 3 was an allegation that he on 18 March 2014 at Cabarita supplied a prohibited drug, namely 3,4-methylenedioxymethamphetamine, and count 4 was an allegation that he on 18 March 2014 at Cabarita in the State of New South Wales offered a bribe, namely $2 million, to Senior Constable Michael Cook, a member of the New South Wales Police Force, for the purpose of inducing him to neglect his duty.
The prisoner was found not guilty of counts 1 to 3, but guilty of count 4 and is today appearing for sentence in relation to that count. The offence for which he was found guilty by a jury verdict is an offence contrary to s 200(2) of the Police Act 1900 and it carries a maximum penalty of seven years’ imprisonment and/or a fine of $22,000 I am informed by the Crown. I am not aware of how that is expressed in penalty units. There is no standard non parole period.
In relation to this matter I am informed that the prisoner had 50 days of pre sentence custody before being released on bail. He was arrested on 19 March 2014 and was in custody for a few days until 21 March, released and then, as I understood the chronology that was revealed during the course of the trial, was charged in relation to some of the matters for which he was subsequently tried after drug analysis certificates were obtained later in 2014 and went into custody when I remanded him in custody after 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 Araya

Details

AGLC: R v Araya [2016] NSWDC 430
Case: [2016] NSWDC 430
Decision Date: 16 December 2016

CaseChat Overview and Summary

The respondent, Araya, was convicted of offering a bribe to a member of the NSW Police Force. The matter was heard in the Supreme Court of New South Wales. The primary legal issue the court had to address was whether the trial judge erred in his assessment of the appropriate sentence to be imposed on Araya. The respondent argued that the trial judge had failed to take into account mitigating factors, which should have resulted in a lesser sentence.

The court examined the evidence and submissions from both parties, focusing on the nature and circumstances of the offence, as well as the respondent's background and personal circumstances. It was determined that while there were mitigating factors, they did not warrant a significantly reduced sentence. The court emphasised the importance of deterring such conduct and ensuring that the punishment reflects the seriousness of the offence. The appeal against sentence was ultimately dismissed, and the original sentence of a three-year term of imprisonment with a non-parole period of one year and eight months was upheld.

The Supreme Court found that the trial judge had appropriately considered the mitigating factors but had reasonably concluded that the seriousness of the offence warranted a significant penalty. The court further noted that the original sentence was within the range of sentences that could be considered appropriate for this type of offence. As a result, the appeal against sentence was dismissed, and the original sentence imposed by the trial judge was confirmed.

Orders

Orders of the court

Convicted: Sentenced to a term of imprisonment of 3 years with a non-parole period of 1 year 8 months.

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 ARAYA [2016] NSWDC 430
Hearing dates:	9 December 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Convicted: Sentenced to a term of imprisonment of 3 years with a non-parole period of 1 year 8 months.
Catchwords:	Criminal – Sentence, offer a bribe to a member of the NSW Police Force, on parole.
Legislation Cited:	Crimes (Sentencing and Procedure) Act 1999 Police Act 1900
Cases Cited:	R v Callaghan [2006] HCA R v Duong [1999] NSWCCA 353 R v Pengallo (1991) 56 A Crim R 441 R v RCW (No 2) [2014] NSWCCA 190 R v Taouk (1992) 65 A Crim R 387 The Queen v Kilic [2016] HCA 48 Veen (No 2) v The Queen (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions Gustavo Henry Araya - Offender
Representation:	Counsel: Solicitors: Director of Public Prosecutions Ms Heathcote, Lawyer – Offender
File Number(s):	2014/82759