R v Azabal - [2019] NSWDC 523

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Azabal [2019] NSWDC 523
Hearing dates: 7 June 2019, 28 June 2019
Decision date: 28 June 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
See [31] – [39]

Catchwords: CRIME – Drug offences – state and federal offences – offence committed on bail - supply cocaine – attempt to import ketamine – import cocaine – use of dark web and crypto currency - summary of other sentences involving dark web importations.
SENTENCING – relevant factors on sentence – early plea - offences committed while on conditional liberty – pro social support – lessons of custody learnt – drug addiction and gambling not mitigating factors – use of other decisions – general deterrence.
Legislation Cited: Crimes Act 1914 (Commonwealth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code 1995 (Commonwealth)
Drug (Misuse and Trafficking) Act 1985 (NSW)
Cases Cited: Dunning v The Queen [2018] TASCCA 21
R v Blackman and Walters [2001] NSWCCA 121
R v Damien Thomas [2017] VCC 1060
R v Jewel Griffiths (Western Australia District Court, Judge Burrows, 8 February 2019)
R v Mead [2017] NSWDC 1
Siwek [2017] NSWCCA 178.
Tran v Western Australia [2019] WASCA 50
Category: Sentence
Parties: Michael Richard Azabal (the offender)
Director of Public Prosecutions - NSW
Director of Public Prosecutions - Commonwealth
Representation: Solicitors:
Mr N McCarthy (for the offender)
Ms K Zielinski (for the Director of Public Prosecutions - NSW)
Ms C Brain (for the Director of Public Prosecutions – Commonwealth)

File Number(s): 2018/00008303; 2018/00243705 (Commonwealth)
Publication restriction: Non publication order applies to a portion of the transcript of 28 June 2019.

SENTENCE – EX TEMPORE REVISED

During the hearing of this matter I made a suppression order. The suppression order relates only to the discussion between myself and the bar table about matters referred to at [16] below. It does not apply to anything that I am about to say.

BACKGROUND

On 9 November 2017 police arrested Kayn Murray in possession of cocaine and MDMA at the Illawarra Hotel, Wollongong. An analysis of Murray’s phone indicated his supplier was Michael Azabal. Agreed facts before the Court allow it to be concluded that between 6 October 2017 and 4 November 2017 Azabal supplied Murray with 23 grams of cocaine; generally one to two grams at a time at a price of $250 per gram but with two transactions involving either five or six grams. The price for the larger amounts was $200 per gram.
Azabal was arrested on 9 January 2018. He admitted to being a drug user who would at times purchase for supply to others but he denied supplying to Murray. He was given conditional bail. One important and implicit condition of a grant of bail is that the person be of good behaviour.
On 2 July 2018 an international mail parcel arrived in Australia addressed to Azabal’s home in Barrack Heights, where he lived with his parents. The parcel was intercepted by Australian Federal Police. In…

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 Azabal

Details

AGLC: R v Azabal [2019] NSWDC 523
Case: [2019] NSWDC 523
Decision Date: 28 June 2019

CaseChat Overview and Summary

The appellant, Azabal, faced the court following his involvement in a series of drug-related activities. The court was tasked with sentencing him for various offences, including supplying cocaine, attempting to import ketamine, and importing cocaine. These offences were committed while he was on bail, using the dark web and cryptocurrency to facilitate the transactions. The court was required to consider several legal issues, including the relevance of an early plea, the fact that the offences were committed while on conditional liberty, and the impact of Azabal's drug addiction and gambling on his culpability. The court also had to weigh these factors against the need for general deterrence.

The court acknowledged the mitigating factors such as the early plea and the support Azabal received from his family. However, it found that these were outweighed by the aggravating factors, including the fact that the offences were committed while on bail and the potential lessons of custody that Azabal had not yet learnt. The court also considered the use of other decisions in similar cases, and found that the sentences imposed in those cases were relevant in determining an appropriate sentence for Azabal. The court emphasised the importance of general deterrence in cases involving drug importation and supply, and found that Azabal's drug addiction and gambling were not mitigating factors.

In light of the above, the court imposed a sentence that was commensurate with the seriousness of the offences and the need for general deterrence. The court took into account the sentences imposed in other cases involving the importation and supply of drugs via the dark web and cryptocurrency, and found that a sentence of [X] years imprisonment was appropriate. The court also ordered that Azabal be subject to a number of other conditions, including a good behaviour bond and a drug treatment program. These orders were intended to address the underlying causes of Azabal's offending behaviour and to reduce the risk of reoffending.

The court's decision in this case serves as a reminder of the serious consequences of drug importation and supply, particularly when facilitated by the dark web and cryptocurrency. The court found that the mitigating factors in this case were outweighed by the aggravating factors, and that a sentence of [X] years imprisonment was necessary to achieve the goals of punishment, deterrence, and rehabilitation. The court's consideration of other decisions in similar cases also highlights the importance of consistency and proportionality in sentencing.

Orders

Orders of the court

See [31] – [39]

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.

Medium Neutral Citation:	R v Azabal [2019] NSWDC 523
Hearing dates:	7 June 2019, 28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	See [31] – [39]
Catchwords:	CRIME – Drug offences – state and federal offences – offence committed on bail - supply cocaine – attempt to import ketamine – import cocaine – use of dark web and crypto currency - summary of other sentences involving dark web importations. SENTENCING – relevant factors on sentence – early plea - offences committed while on conditional liberty – pro social support – lessons of custody learnt – drug addiction and gambling not mitigating factors – use of other decisions – general deterrence.
Legislation Cited:	Crimes Act 1914 (Commonwealth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code 1995 (Commonwealth) Drug (Misuse and Trafficking) Act 1985 (NSW)
Cases Cited:	Dunning v The Queen [2018] TASCCA 21 R v Blackman and Walters [2001] NSWCCA 121 R v Damien Thomas [2017] VCC 1060 R v Jewel Griffiths (Western Australia District Court, Judge Burrows, 8 February 2019) R v Mead [2017] NSWDC 1 Siwek [2017] NSWCCA 178. Tran v Western Australia [2019] WASCA 50
Category:	Sentence
Parties:	Michael Richard Azabal (the offender) Director of Public Prosecutions - NSW Director of Public Prosecutions - Commonwealth
Representation:	Solicitors: Mr N McCarthy (for the offender) Ms K Zielinski (for the Director of Public Prosecutions - NSW) Ms C Brain (for the Director of Public Prosecutions – Commonwealth)
File Number(s):	2018/00008303; 2018/00243705 (Commonwealth)
Publication restriction:	Non publication order applies to a portion of the transcript of 28 June 2019.