R v Bagnall - [2021] NSWDC 738

District Court

New South Wales

Medium Neutral Citation: R v Bagnall [2021] NSWDC 738
Hearing dates: 1 October 2021
Date of orders: 8 October 2021
Decision date: 08 October 2021
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted on each count.
Indicative sentences of imprisonment:
SEQ 1 (+Form 1 matters SEQ 3, 8, 9, 16, 19): 6 years
SEQ 6: 2 years
SEQ 18: 5 years
Aggregate sentence:
Special circumstances found to adjust the statutory ratio of the NPP and the balance of term to take account of 3 months in custody prior to this term of imprisonment and to provide for a longer than usual period of parole.
Sentenced to a term of imprisonment for 7 years with a NPP of 5 years to commence on 7 February 2021 and expire on 6 February 2026 upon which date he will become eligible for parole, and a balance of term of 2 years to expire on 6 February 2028.
s166 related offences
SEQ 12: Fine $750 + Disqualification period: 6 months
SEQ 13,15,17: withdrawn and dismissed

Catchwords:
CRIMINAL – Sentence – drug supply – methylamphetamine – cannabis oil - enhanced indoor cultivation of cannabis for a commercial purpose, 192 plants – Form 1 and s166 matters - possess prohibited weapon (flick knife) without permit – possess prohibited drug, cannabis leaf, buprenorphine - deal with property suspected proceeds of crime –drive vehicle with illicit drug present in blood –role of offender - aggravating features- objective seriousness – subjective matters – indicative and aggregate sentences

Legislation Cited:
Crimes (Sentencing Procedure) Act
Drug Misuse and Trafficking Act 1985
Weapons Prohibition Act 1988

Cases Cited:
R v Kerr [2016] NSWCCA 218

Category: Sentence
Parties: Regina
Bagnall, Richard David
Representation:
Counsel:
Def: Mr T Healey
Solicitors:
Crown: Mr N Scully
Def: Mr D Fryatt, Williams Roncolato Lawyers

File Number(s): 2020/00317736

Judgment

HIS HONOUR: Richard Bagnall appears for sentence in relation to a number of offences.
Sequence 1, supply a prohibited drug, 188.2 grams of methylamphetamine. Contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty provided is 15 years’ imprisonment, and/or 2,000 penalty units.
Sequence 6, supply prohibited drug, being 14.91 grams of methylamphetamine. Again, contrary to s 25(1) of the Drug Misuse and Trafficking Act, with the same available maximum penalty.
Sequence 18, enhanced indoor cultivation of cannabis for a commercial purpose, 192 plants, contrary to s 23(1A) of the Drug Misuse and Trafficking Act, the maximum penalty is 15 years’ imprisonment, and/or 3,500 penalty units.
I note in relation to the offences, being Sequence 1 and Sequence 6, that there is an and/or 2,000 penalty unit in respect of each. There is no standard non parole period in respect of any of the offences.
In addition, the offender asks that when being dealt with in respect of Sequence 1, relating to 188.92 grams of methylamphetamine, that the Court take into account a number of…

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 Bagnall

Details

AGLC: R v Bagnall [2021] NSWDC 738
Case: [2021] NSWDC 738
Decision Date: 08 October 2021

CaseChat Overview and Summary

The defendant, Bagnall, faced a court in Australia over various criminal charges related to drug supply and possession, as well as other related offences. Bagnall was found to be involved in the supply of methylamphetamine and cannabis oil, and was also charged with cultivating cannabis for commercial purposes, possessing a prohibited weapon, dealing with property suspected to be proceeds of crime, and driving with illicit drugs in his system. These charges stemmed from a significant operation that led to the discovery of 192 cannabis plants in an indoor cultivation setup. The case also included charges related to the possession of cannabis leaf and buprenorphine, as well as driving under the influence of a drug.

The court was tasked with determining the appropriate sentence for Bagnall, taking into account the various charges and the severity of the offences. This involved assessing the role Bagnall played in the criminal activities, the objective seriousness of the offences, and any subjective matters that could influence the sentencing. The court considered the indicative and aggregate sentences for each sequence of charges, balancing the statutory ratio of the non-parole period and the overall term of imprisonment. Special circumstances, such as the time Bagnall had already spent in custody and the need for a longer than usual period of parole, were also factored into the sentencing decision.

Bagnall was found guilty on all counts and was sentenced to a total term of imprisonment of seven years, with a non-parole period of five years. This sentence took into account the need to balance the statutory ratio of the non-parole period and the overall term, as well as the special circumstances mentioned earlier. Additionally, Bagnall was fined and faced disqualification periods for certain driving-related offences. The court also addressed the s166 related offences, resulting in fines and disqualification periods for some charges, while others were withdrawn and dismissed.

Orders

Orders of the court

Convicted on each count.

Indicative sentences of imprisonment:

SEQ 1 (+Form 1 matters SEQ 3, 8, 9, 16, 19): 6 years

SEQ 6: 2 years

SEQ 18: 5 years

Aggregate sentence:

Special circumstances found to adjust the statutory ratio of the NPP and the balance of term to take account of 3 months in custody prior to this term of imprisonment and to provide for a longer than usual period of parole.

Sentenced to a term of imprisonment for 7 years with a NPP of 5 years to commence on 7 February 2021 and expire on 6 February 2026 upon which date he will become eligible for parole, and a balance of term of 2 years to expire on 6 February 2028.

s166 related offences

SEQ 12: Fine $750 + Disqualification period: 6 months

SEQ 13,15,17: withdrawn and dismissed

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 Bagnall [2021] NSWDC 738
Hearing dates:	1 October 2021
Date of orders:	8 October 2021
Decision date:	08 October 2021
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted on each count. Indicative sentences of imprisonment: SEQ 1 (+Form 1 matters SEQ 3, 8, 9, 16, 19): 6 years SEQ 6: 2 years SEQ 18: 5 years Aggregate sentence: Special circumstances found to adjust the statutory ratio of the NPP and the balance of term to take account of 3 months in custody prior to this term of imprisonment and to provide for a longer than usual period of parole. Sentenced to a term of imprisonment for 7 years with a NPP of 5 years to commence on 7 February 2021 and expire on 6 February 2026 upon which date he will become eligible for parole, and a balance of term of 2 years to expire on 6 February 2028. s166 related offences SEQ 12: Fine $750 + Disqualification period: 6 months SEQ 13,15,17: withdrawn and dismissed
Catchwords:	CRIMINAL – Sentence – drug supply – methylamphetamine – cannabis oil - enhanced indoor cultivation of cannabis for a commercial purpose, 192 plants – Form 1 and s166 matters - possess prohibited weapon (flick knife) without permit – possess prohibited drug, cannabis leaf, buprenorphine - deal with property suspected proceeds of crime –drive vehicle with illicit drug present in blood –role of offender - aggravating features- objective seriousness – subjective matters – indicative and aggregate sentences
Legislation Cited:	Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act 1985 Weapons Prohibition Act 1988
Cases Cited:	R v Kerr [2016] NSWCCA 218
Category:	Sentence
Parties:	Regina Bagnall, Richard David
Representation:	Counsel: Def: Mr T Healey Solicitors: Crown: Mr N Scully Def: Mr D Fryatt, Williams Roncolato Lawyers
File Number(s):	2020/00317736