R v Austen - [2017] NSWDC 425

District Court

New South Wales

Medium Neutral Citation: R v Austen [2017] NSWDC 425
Hearing dates: 20 – 21 July 2017
Date of orders: 25 August 2017
Decision date: 25 August 2017
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
I sentence you to imprisonment. I have set a non-parole period of one year and three months, commencing on 27 July 2017 and expiring on 26 October 2018. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 26 October 2019. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matter on the Form 1.

Catchwords: CRIME – SENTENCE – Supply of a prohibited drug, namely cocaine – Sentence passed on related offender considered – Current offender’s criminality objectively greater – Finding of special circumstances
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: EF v R [2015] NSWCCA 36
R v Blair (2005) 152 A Crim R 462
R v Hayes (1987) 29 A Crim R 452
Category: Sentence
Parties: Regina (Crown)
Scott David Austen (Offender)
Representation:
Counsel:
Ms A Narayan (Crown)
Mr T Hughes (Offender)
Solicitors:
Solicitors for the Office of the DPP (Crown)
Korn MacDougall Lawyers (Offender)

File Number(s): 2016/197316
Publication restriction: Nil

Judgment

HIS HONOUR: Scott David Austen stands for sentence as a consequence of pleading guilty to a charge that between 12 April 2016 and 9 June 2016 in Sydney in this State he supplied a prohibited drug, namely 31.79 grams of cocaine. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that crime is 15 years imprisonment with or without a fine. The offender also asks me to take into account on a Form 1, the crime of possession of a prohibited drug, namely 1.6 grams of cocaine with which he was found at the time of his arrest.
At the time of his offending, the offender was an international baggage handler at Sydney International Airport, being employed by a company described to me as Dnata. The first supply of cocaine detected was on 12 April 2016. On that day, the offender left Sydney International Airport in a grey 2012 Holden Commodore station wagon. He was accompanied by another employee of Dnata, Mark Andrew Gambin. The agreed facts record a conversation between Gambin and the offender. It appears that the offender agreed to supply 0.8 grams of cocaine to Gambin for $200. The going rate for such supply at that time in Sydney was $300. Gambin, in essence, apologised to the offender for the offender’s giving him such a large discount on the supply of cocaine. That did not appear to worry…

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 Austen

Details

AGLC: R v Austen [2017] NSWDC 425
Case: [2017] NSWDC 425
Decision Date: 25 August 2017

CaseChat Overview and Summary

The case of R v Austen was heard in a court of criminal jurisdiction in Australia, where the accused, Austen, faced charges related to the supply of a prohibited drug, specifically cocaine. The nature of the dispute was centered around the appropriate sentence for Austen's criminal activity, taking into account the severity of the offence and relevant circumstances, including the consideration of a sentence passed on a related offender. The court was required to balance the principles of sentencing with the need to ensure justice and deterrence.

The legal issues before the court involved determining the appropriate sentence for Austen's supply of cocaine, considering the gravity of the offence and any special circumstances that may have been present. The court also had to consider the sentence passed on a related offender, as it was relevant to assessing the current offender's criminality objectively. Furthermore, the court had to decide whether there were any special circumstances that warranted a departure from the usual sentencing principles.

The court found that Austen's criminality was objectively greater than that of the related offender, taking into account the quantity of cocaine involved and the role Austen played in the supply chain. The court also found that there were special circumstances present, which justified a departure from the usual sentencing principles. The court acknowledged the potential impact of the sentence on Austen's prospects for rehabilitation and reintegration into society. Ultimately, the court imposed a sentence of two years and three months, with a non-parole period of one year and three months. The court found special circumstances and ordered that Austen be released on parole at the expiration of the non-parole period.

The court's final orders were that Austen be sentenced to imprisonment for a total of two years and three months, with a non-parole period of one year and three months. The sentence was to commence on 27 July 2017 and expire on 26 October 2019. The court also found special circumstances and ordered that Austen be released on parole at the expiration of the non-parole period. The court's decision balanced the need for deterrence and justice with the potential for Austen's rehabilitation and reintegration into society.

Orders

Orders of the court

I sentence you to imprisonment. I have set a non-parole period of one year and three months, commencing on 27 July 2017 and expiring on 26 October 2018. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 26 October 2019. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matter on the Form 1.

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 Austen [2017] NSWDC 425
Hearing dates:	20 – 21 July 2017
Date of orders:	25 August 2017
Decision date:	25 August 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I sentence you to imprisonment. I have set a non-parole period of one year and three months, commencing on 27 July 2017 and expiring on 26 October 2018. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 26 October 2019. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matter on the Form 1.
Catchwords:	CRIME – SENTENCE – Supply of a prohibited drug, namely cocaine – Sentence passed on related offender considered – Current offender’s criminality objectively greater – Finding of special circumstances
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	EF v R [2015] NSWCCA 36 R v Blair (2005) 152 A Crim R 462 R v Hayes (1987) 29 A Crim R 452
Category:	Sentence
Parties:	Regina (Crown) Scott David Austen (Offender)
Representation:	Counsel: Ms A Narayan (Crown) Mr T Hughes (Offender) Solicitors: Solicitors for the Office of the DPP (Crown) Korn MacDougall Lawyers (Offender)
File Number(s):	2016/197316
Publication restriction:	Nil