R v Clemas

[2023] NSWDC 607

District Court

New South Wales

Medium Neutral Citation:

R v Clemas [2023] NSWDC 607

Hearing dates:

24 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Imprisonment sentence of 3 years with a non-parole period of 2 years

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Objective seriousness — Maintenance of innocence

SENTENCING — Sentencing procedure — After jury trial — Fact finding consistent with jury verdict

SENTENCING — Subjective considerations on sentence — Childhood deprivation — Drug addiction­ good prospects if he engages in treatment — Solid work history — Special circumstances

Legislation Cited:

Bail Act 2013(NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 52

Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270

R v Shi [2004] NSWCCA 135.

Category:

Sentence

Parties:

Barry Clemas (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Solicitors:
I Vizintin Legal Aid NSW (for the offender)
R Taylor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/15682

JUDGMENT – Ex tempore revised

Introduction

1. On 13 July 2023, after a short trial, a jury of 12 convicted Barry Clemas of Supplying a Commercial Quantity of the Prohibited Drug methylamphetamine: s 25.2 Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of 20 years’ imprisonment. There is a standard non-parole period of 10 years. The commercial quantity of the drug is 250 grams.

2. Clemas must be sentenced on the basis that he knowingly possessed and transported the drug knowing there was more than the commercial quantity of it. The critical issue at trial was whether Clemas had possession of a plastic bag containing 499.03 grams of methylamphetamine that was carried by taxi from Liverpool to Port Kembla and back. The taxi was intercepted by police as it returned from Port Kembla to Liverpool.

3. The jury, by its verdict, must have rejected the defence case that Clemas had gone to Port Kembla for an innocent purpose, not knowing drugs had been placed in the taxi’s boot. Given the way the prosecution case was presented, the jury must have accepted the evidence of the taxi driver when he said he saw Clemas at the car when the bag was placed in the boot by another person, and that Clemas took the bag from the car while he visited a house at Port Kembla before returning to the taxi with that bag.

4. The jury, by its verdict, must have accepted beyond reasonable doubt that Clemas knew that the bag in the taxi contained a drug. And, as he took the bag from the taxi to the house at Port Kembla and returned with it, he would have had some idea of its weight.