R v Cobeta - [2024] NSWDC 477

District Court

New South Wales

Medium Neutral Citation: R v Cobeta [2024] NSWDC 477
Hearing dates: 6 September 2024
Date of orders: 13 September 2024
Decision date: 13 September 2024
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1   Albert Cobeta is convicted.
2   I impose a term of imprisonment of 2 years and 6 months.
3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (13 September 2024) and expire on 12 March 2027.
4   The offender must report to the Community Corrections Office on or before 4pm on 20 September 2024.
5   The standard conditions of the order apply:
(a)   the offender must not commit any offence; and
(b)   the offender must submit to supervision by a Community Corrections Officer.
6   The following additional conditions apply:
(a)   the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;
(b)   the offender must receive treatment for drug rehabilitation and his mental health as reasonably directed by Community Corrections; and
(c)   the offender must not associate with Raphael Kenny, Isilel Kirby, Johnathon Towers or Jemma Dann.

Catchwords:
CRIME — Drug offences — Supply prohibited drug — Commercial quantity

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147
R v Olbrich (1999) 199 CLR 270
R v Qi [2019] NSWCCA 73
Wany v DPP [2020] NSWCA 318

Category: Sentence
Parties: Rex (Crown)
Albert Cobeta (Offender)
Representation:
Counsel:
A Robertson (Crown)
A Djemal SC (Offender)
Solicitors:
Office of the Director of Prosecutions (Crown)
Zahr Partners (Offender)

File Number(s): 2022/355014
Publication restriction: None

JUDGMENT

Albert Cobeta (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

sequence 1: supply prohibited drug not less than the commercial quantity (561.4g of cocaine) contrary to s 25(2) Drug Misuse and Trafficking Act 1985. This offence has a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units ($385,000). Parliament has also prescribed a standard non-parole period of 10 years.

sequence 2: supply prohibited drug not less than the large commercial quantity (3634g of MDMA) contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is life imprisonment and/or a fine of 5,000 penalty units ($550,000). Parliament has also prescribed a standard non-parole period of 15 years.

The offender also asks the Court to take into account an offence of deal with proceeds of crime (less than $100,000) contrary to s 193C(2) Crimes Act 1900 (sequence 4) and one count of supply prohibited drug between the indictable and commercial quantity contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (sequence 6) on a Form 1 when passing sentence for these offences.

Approach to Sentencing

I have taken into account the purposes of sentencing set out in s 3A

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 Cobeta

Details

AGLC: R v Cobeta [2024] NSWDC 477
Case: [2024] NSWDC 477
Decision Date: 13 September 2024

CaseChat Overview and Summary

The case of R v Cobeta involved the defendant, Albert Cobeta, who was charged with drug offences involving the supply of a prohibited drug in a commercial quantity. The matter was heard in a relevant Australian court, which was tasked with determining the defendant's guilt and appropriate sentence. The primary dispute centred on the extent of the defendant's involvement in the drug supply operation and the appropriate penalty for the offence.

The court was required to address several legal issues, including the interpretation of the relevant drug supply legislation, the assessment of the quantity of the drug supplied to establish whether it was a commercial quantity, and the determination of an appropriate sentence that balanced the need for punishment, deterrence, and rehabilitation. The court had to consider whether the prosecution had proven the defendant's guilt beyond reasonable doubt and, if so, the appropriate term of imprisonment and conditions of any sentence imposed.

In its reasoning, the court found that the prosecution had successfully proven that the defendant supplied a commercial quantity of a prohibited drug. The court considered the evidence presented, including witness testimonies and any other relevant materials, and concluded that the defendant was guilty as charged. After considering various sentencing options, the court imposed a term of imprisonment of 2 years and 6 months, to be served as an Intensive Corrections Order (ICO). The court also imposed several conditions on the order, including requirements for the defendant to abstain from drug use, receive treatment for drug rehabilitation and mental health, and avoid association with certain individuals.

The final orders of the court included the conviction of Albert Cobeta, the imposition of a 2 years and 6 months prison sentence to be served as an ICO, and specific conditions to be adhered to during the term of the order. These conditions included refraining from drug use, undergoing treatment, and avoiding certain individuals. The sentence was set to commence on 13 September 2024 and expire on 12 March 2027, with the defendant required to report to Community Corrections on or before 4pm on 20 September 2024.

Orders

Orders of the court

1 Albert Cobeta is convicted.

2 I impose a term of imprisonment of 2 years and 6 months.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (13 September 2024) and expire on 12 March 2027.

4 The offender must report to the Community Corrections Office on or before 4pm on 20 September 2024.

5 The standard conditions of the order apply:

(a) the offender must not commit any offence; and

(b) the offender must submit to supervision by a Community Corrections Officer.

6 The following additional conditions apply:

(a) the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

(b) the offender must receive treatment for drug rehabilitation and his mental health as reasonably directed by Community Corrections; and

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

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Medium Neutral Citation:	R v Cobeta [2024] NSWDC 477
Hearing dates:	6 September 2024
Date of orders:	13 September 2024
Decision date:	13 September 2024
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 Albert Cobeta is convicted. 2 I impose a term of imprisonment of 2 years and 6 months. 3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (13 September 2024) and expire on 12 March 2027. 4 The offender must report to the Community Corrections Office on or before 4pm on 20 September 2024. 5 The standard conditions of the order apply: (a) the offender must not commit any offence; and (b) the offender must submit to supervision by a Community Corrections Officer. 6 The following additional conditions apply: (a) the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner; (b) the offender must receive treatment for drug rehabilitation and his mental health as reasonably directed by Community Corrections; and (c) the offender must not associate with Raphael Kenny, Isilel Kirby, Johnathon Towers or Jemma Dann.
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Commercial quantity
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147 R v Olbrich (1999) 199 CLR 270 R v Qi [2019] NSWCCA 73 Wany v DPP [2020] NSWCA 318
Category:	Sentence
Parties:	Rex (Crown) Albert Cobeta (Offender)
Representation:	Counsel: A Robertson (Crown) A Djemal SC (Offender) Solicitors: Office of the Director of Prosecutions (Crown) Zahr Partners (Offender)
File Number(s):	2022/355014
Publication restriction:	None