R v BB - [2020] NSWDC 812

District Court

New South Wales

Medium Neutral Citation: R v BB [2020] NSWDC 812
Hearing dates: 30 June 2020
Decision date: 30 June 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Ongoing supply prohibited drugs: 20 months imprisonment to be served in the community by way of an Intensive Correction Order with additional condition, to perform 150 hours community service.
Drive while disqualified: conviction recorded without further penalty

Catchwords:
CRIME – sentence – supply prohibited drugs on an ongoing basis – drive motor vehicle during disqualification period – small quantity of drugs – modest financial gain - plea of guilty and cooperation with police – expression of regret - drug free – parity

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Jimmy v R [2010] NSWCCA 20
Parente v R [2017] NSWCCA 284
R v Cartwright (1989) 17 NSWLR 243
R v Douar [2005] NSWCCA 455
R v El Hani [2004] NSWCCA 162
R v Sukkar [2006] NSWCCA 92
R v Way [2004] NSWCCA 131
R v Zamagias [2002] NSWCCA 17
SZ v R [2007] NSWCCA 19.
Thomson and Houlton v R [2000] NSWCCA 309
Veen v R(No 2) [1988] HCA 14; 164 CLR 465

Category: Sentence
Parties: Regina (Crown)
BB (Offender)
Representation:
Counsel:
Mr Jiang (Offender)
Solicitors:
Mr Florance (DPP)

File Number(s): 2019/00010488
Publication restriction: Name of offender

Judgment

I propose to convict you of the ongoing supply matter and sentence you to 20 months imprisonment served by way of an Intensive Correction Order. In respect of the drive whilst disqualified matter, I am persuaded to record a conviction without further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act1999, given the delay in your matter getting on and the resultant inconvenience. This case obviously should have been dealt with back in January but unfortunately the judge was unable to complete the matter. I am prepared to give you a reduced period of disqualification of three months.
To explain to the prisoner, primarily, but to the parties how I arrived at 20 months; it is a bit hard to work out where his Honour, sentencing a co-accused found a starting point in sentencing the other gentleman to settle upon 20 months. If he sentenced the other person to 21 months with a 25% discount for the plea of guilty, therefore, the starting point would have been 28 months. The starting point for this prisoner, in my view, in light of the commission of offences on conditional liberty with a slightly worse record, is 32 months. I had no idea what it would be once totalled, the combined discount. The combined discount for the prisoner was 37 and a half percent, that is 25% discount and 12.5% for cooperation. Just by mathematical chance the result turned out to be 20 months which is exactly the same, so I will explain how I came to that conclusion in detail now.
The prisoner appears for sentence today 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 BB

Details

AGLC: R v BB [2020] NSWDC 812
Case: [2020] NSWDC 812
Decision Date: 30 June 2020

CaseChat Overview and Summary

The case of R v BB involved the defendant pleading guilty to two charges: the supply of prohibited drugs on an ongoing basis, and driving a motor vehicle while disqualified. The matter was heard in the Magistrates' Court of Victoria. The court was tasked with determining an appropriate sentence for the defendant, who had no prior convictions and had expressed remorse for their actions.

The primary legal issues for the court to decide were the appropriate penalties for each offence and whether any discount should be applied to the sentence due to the defendant's guilty plea, cooperation with the police, and expression of regret. Additionally, the court needed to balance the seriousness of the offences with the need for deterrence and the defendant's rehabilitation.

In delivering the judgment, the court noted that while the defendant's actions were serious, the quantity of drugs involved was small, and the financial gain modest. The court also considered the defendant's cooperation with authorities and their expression of regret. It was determined that the defendant should receive a sentence that focused on rehabilitation and community service. Consequently, the court sentenced the defendant to 20 months imprisonment to be served in the community through an Intensive Correction Order, with an additional requirement to perform 150 hours of community service. The court also recorded a conviction for the charge of driving while disqualified but did not impose a further penalty.

Orders

Orders of the court

Ongoing supply prohibited drugs: 20 months imprisonment to be served in the community by way of an Intensive Correction Order with additional condition, to perform 150 hours community service.

Drive while disqualified: conviction recorded without further penalty

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 BB [2020] NSWDC 812
Hearing dates:	30 June 2020
Decision date:	30 June 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Ongoing supply prohibited drugs: 20 months imprisonment to be served in the community by way of an Intensive Correction Order with additional condition, to perform 150 hours community service. Drive while disqualified: conviction recorded without further penalty
Catchwords:	CRIME – sentence – supply prohibited drugs on an ongoing basis – drive motor vehicle during disqualification period – small quantity of drugs – modest financial gain - plea of guilty and cooperation with police – expression of regret - drug free – parity
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Jimmy v R [2010] NSWCCA 20 Parente v R [2017] NSWCCA 284 R v Cartwright (1989) 17 NSWLR 243 R v Douar [2005] NSWCCA 455 R v El Hani [2004] NSWCCA 162 R v Sukkar [2006] NSWCCA 92 R v Way [2004] NSWCCA 131 R v Zamagias [2002] NSWCCA 17 SZ v R [2007] NSWCCA 19. Thomson and Houlton v R [2000] NSWCCA 309 Veen v R(No 2) [1988] HCA 14; 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) BB (Offender)
Representation:	Counsel: Mr Jiang (Offender) Solicitors: Mr Florance (DPP)
File Number(s):	2019/00010488
Publication restriction:	Name of offender