R v Barden - [2015] NSWDC 395

District Court

New South Wales

Medium Neutral Citation: R v Barden [2015] NSWDC 395
Hearing dates: 2 December 2015
Date of orders: 02 December 2015
Decision date: 02 December 2015
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
(1) Offender sentenced to a term of imprisonment of 1 year, suspended pursuant to s12 Crimes (Sentencing Procedure) Act 1989

(2) Good behaviour bond for one year imposed

(3) Charge contained on s 166 certificate dismissed

(4) Pursuant to s 18(1) of Confiscation of Proceeds of Crime Act 1989, cash in the sum of $AUD200 found at Woolooware Railway Station on 1 April 2015 be forfeited to the Crown

(5) Pursuant to s 19(3)(a) of Confiscation of Proceeds of Crime Act 1989 leave for the $AUD200 to be disposed of forthwith
(6) Order drugs to be destroyed.
Catchwords: CRIMINAL LAW – Sentence – supply of 8.28 grams of “Nexus” – 4 offences on Form 1: possession of 0.66 grams of Ecstasy, possession of 0.13 grams of cocaine, dealing with property, namely four $50 bills that there were reasonable grounds to believe were the proceeds of crime and public urination – Offender arrested for public urination at train station and found to be in possession of drugs and cash – Offender stated that he obtained the drugs in a laneway near Cronulla Surf Club for a mate to take to a party in Bondi – Offender was in company with about eight of his friends, travelling to Bondi to attend a concert or dance party, inference drawn that the offender purchased the Nexus tablets to pass them on to members of this group to be consumed at the event – Circumstances of offending do not suggest any commercial operation or trafficking – 25 years old at time of offending, history of drug abuse, diagnosed stimulant use disorder – At time of sentence offender abstinent of illicit drugs for three months and well-regarded by his employer – Low risk of recidivism
Legislation Cited: Confiscation of Proceeds of Crime Act 1989
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Bardo (unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Sheller JA and Badgery-Parker JJ, 14 July 1992)
R v Gip [2006] NSWCCA 115
R v Ozer (unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Allen and Mathews JJ, 9 July 1993)
Category: Sentence
Parties: Director of Public Prosecutions (NSW) (Crown)
Jackson Barden (Offender)
Representation: Solicitor for the Director of Public Prosecutions (NSW) (Crown)
Mr M Pickin (Offender)

File Number(s): 2015/00097473
Publication restriction: No

Judgment

HIS HONOUR: Jackson Barden stands for sentence as a consequence of having pleaded guilty to a charge that on 1 April 2015 at Woolooware in this State he did knowingly take part in the supply of a prohibited drug, namely 8.28 grams of the drug commonly known as Nexus in tablet form and the offender also asks me to take into account on a Form 1 four further offences also committed on 1 April 2015.

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 Barden

Details

AGLC: R v Barden [2015] NSWDC 395
Case: [2015] NSWDC 395
Decision Date: 02 December 2015

CaseChat Overview and Summary

In the case of R v Barden, the offender was charged with multiple offences including the supply of 8.28 grams of "Nexus", possession of 0.66 grams of Ecstasy, possession of 0.13 grams of cocaine, dealing with property that there were reasonable grounds to believe were the proceeds of crime, and public urination. The offender was arrested for public urination at a train station and subsequently found to be in possession of drugs and cash. The offender claimed that he obtained the drugs for a friend to take to a party in Bondi. He was in the company of friends, travelling to Bondi to attend a concert or dance party, and it was inferred that he purchased the Nexus tablets to pass them on to members of his group to be consumed at the event. The circumstances of the offending did not suggest any commercial operation or trafficking.

The legal issues before the court involved the sentencing of the offender for these multiple charges. The court had to consider the nature and circumstances of the offending, the offender's background, and the principles of sentencing. The court found that the offender, who was 25 years old at the time of the offending, had a history of drug abuse and a diagnosed stimulant use disorder. However, at the time of sentencing, the offender had been abstinent from illicit drugs for three months and was well-regarded by his employer, indicating a low risk of recidivism.

The court sentenced the offender to a term of imprisonment of one year, suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1989. Additionally, a good behaviour bond for one year was imposed, and the charge contained on the s 166 certificate was dismissed. The court ordered that the cash found at Woolooware Railway Station on 1 April 2015 be forfeited to the Crown under section 18(1) of the Confiscation of Proceeds of Crime Act 1989, and leave was given for the $AUD200 to be disposed of forthwith under section 19(3)(a) of the same Act. The court also ordered that the drugs be destroyed.

Orders

Orders of the court

(1) Offender sentenced to a term of imprisonment of 1 year, suspended pursuant to s12 Crimes (Sentencing Procedure) Act 1989

(2) Good behaviour bond for one year imposed

(3) Charge contained on s 166 certificate dismissed

(4) Pursuant to s 18(1) of Confiscation of Proceeds of Crime Act 1989, cash in the sum of $AUD200 found at Woolooware Railway Station on 1 April 2015 be forfeited to the Crown

(5) Pursuant to s 19(3)(a) of Confiscation of Proceeds of Crime Act 1989 leave for the $AUD200 to be disposed of forthwith

(6) Order drugs to be destroyed.

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 Barden [2015] NSWDC 395
Hearing dates:	2 December 2015
Date of orders:	02 December 2015
Decision date:	02 December 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	(1) Offender sentenced to a term of imprisonment of 1 year, suspended pursuant to s12 Crimes (Sentencing Procedure) Act 1989 (2) Good behaviour bond for one year imposed (3) Charge contained on s 166 certificate dismissed (4) Pursuant to s 18(1) of Confiscation of Proceeds of Crime Act 1989, cash in the sum of $AUD200 found at Woolooware Railway Station on 1 April 2015 be forfeited to the Crown (5) Pursuant to s 19(3)(a) of Confiscation of Proceeds of Crime Act 1989 leave for the $AUD200 to be disposed of forthwith (6) Order drugs to be destroyed.
Catchwords:	CRIMINAL LAW – Sentence – supply of 8.28 grams of “Nexus” – 4 offences on Form 1: possession of 0.66 grams of Ecstasy, possession of 0.13 grams of cocaine, dealing with property, namely four $50 bills that there were reasonable grounds to believe were the proceeds of crime and public urination – Offender arrested for public urination at train station and found to be in possession of drugs and cash – Offender stated that he obtained the drugs in a laneway near Cronulla Surf Club for a mate to take to a party in Bondi – Offender was in company with about eight of his friends, travelling to Bondi to attend a concert or dance party, inference drawn that the offender purchased the Nexus tablets to pass them on to members of this group to be consumed at the event – Circumstances of offending do not suggest any commercial operation or trafficking – 25 years old at time of offending, history of drug abuse, diagnosed stimulant use disorder – At time of sentence offender abstinent of illicit drugs for three months and well-regarded by his employer – Low risk of recidivism
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Bardo (unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Sheller JA and Badgery-Parker JJ, 14 July 1992) R v Gip [2006] NSWCCA 115 R v Ozer (unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Allen and Mathews JJ, 9 July 1993)
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Jackson Barden (Offender)
Representation:	Solicitor for the Director of Public Prosecutions (NSW) (Crown) Mr M Pickin (Offender)
File Number(s):	2015/00097473
Publication restriction:	No