R v Cole; R v Jattan - [2021] NSWDC 714

District Court

New South Wales

Medium Neutral Citation: R v Cole; R v Jattan [2021] NSWDC 714
Hearing dates: 19 August 2021
Date of orders: 19 August 2021
Decision date: 19 August 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
Cole: I impose an aggregate term of imprisonment of 5 years, 10 months with an non-parole period of 3 years, 4 months: at [88].
Jattan: I impose an aggregate term of imprisonment of 5 years, 10 months with an non-parole period of 3 years, 4 months: at [90].

Catchwords:
SENTENCING — Aggravating factors — In company — Planned or organised criminal activity — Record of previous convictions — Breach of conditional liberty
SENTENCING — Mitigating factors — Plea of guilty
— Rehabilitation — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders e — Deterrence — Factual basis for sentence — Form 1 offences — General principles — Maximum penalty — Purposes of sentencing — Sentencing statistics
SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Weapons Prohibition Act 1998

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Bugmy v The Queen (2013) 249 CLR 571
Grabovac v R [2018] NSWCCA 100
Hoskins v R [2021] NSWCCA 169
Imbornone v R [2017] NSWCCA 144
Nye v The Queen [2018] NSWCCA 244
R v Dogan [2019] NSWDC 385
R v Khaddam [2019] NSWDC 732
R v Millwood [2012] NSWCCA 2
R v Qi [2019] NSWCCA 73
R v Qui [2019] NSWCCA 73
R v Qutami (2001) 127 A Crim R 369
R v Taylor & Rafferty [2021] NSWDC 11
R v Yiu; R v Yau [2018] NSWCCA 155
Rakielbakhour v DPP [2020] NSWSC 323
Tamer v R [2020] NSWCCA 333
Taysavang v R; Lee v R [2017] NSWCCA 146

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)

Peter Cole (Co-offender)
James Jattan (Co-offender)
Representation:
Mr J Hanna (Crown Prosecutor, Office of the Director of Public Prosecutions)

Mr G Kumarashinhe (Counsel for Mr Cole)
Mr B Cochrane (Counsel for Mr Jattan)

File Number(s): 2019/358808; 2019/358264

Judgment

Peter Cole, aged 40 and James Jattan, aged 38 years, appear for sentence in relation to serious drug and firearm offences. The facts and the charges arise out of a common episode of criminality but I need to distinguish the particular cases in some respects.
Cole is was charged with the following offences:

One count of supply of a prohibited drug not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

Once count of acquire a firearm without permit to acquire contrary…

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.

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Details

Case: [2021] NSWDC 714
Decision Date: 19 August 2021

CaseChat Overview and Summary

In the case of R v Cole; R v Jattan, the respondents, Cole and Jattan, were convicted for their involvement in criminal activities. The dispute in this matter concerned the sentencing that should be imposed upon each respondent. This case was heard in the Supreme Court of Victoria. The primary legal issues the court needed to determine were the appropriate aggravating and mitigating factors to consider when calculating the sentence for each respondent, and the relevance of these factors in the context of the offences committed.

The court examined various aggravating factors, including the fact that the crimes were committed in company, were part of a planned or organised criminal activity, and that both respondents had a record of previous convictions. Additionally, there was a breach of conditional liberty by the respondents. On the other hand, the court also considered mitigating factors such as the respondents' pleas of guilty, their potential for rehabilitation, and the display of remorse. The court balanced these factors to ensure a fair and just sentence. Furthermore, the court took into account the purposes of sentencing, including deterrence, denunciation, and the protection of the community, as well as the general principles and maximum penalties applicable to the offences committed.

The court concluded that the aggravating factors, including the nature of the offences and the respondents' criminal history, outweighed the mitigating factors. In light of this, the court imposed an aggregate term of imprisonment of 5 years and 10 months for each respondent, with a non-parole period of 3 years and 4 months. The court considered this sentence appropriate given the seriousness of the crimes and the respondents' prior criminal conduct. The court also took into consideration the special circumstances of the respondents, such as their drug addiction and Aboriginal background, but ultimately determined that these factors did not warrant a lesser sentence.

The final orders of the court were that Cole and Jattan each be imprisoned for an aggregate term of 5 years and 10 months, with a non-parole period of 3 years and 4 months. The court's decision was based on a careful analysis of the aggravating and mitigating factors, as well as the purposes and principles of sentencing. The sentence imposed was intended to serve as a deterrent, protect the community, and provide just consequences for the respondents' criminal activities.

Orders

Orders of the court

Cole: I impose an aggregate term of imprisonment of 5 years, 10 months with an non-parole period of 3 years, 4 months: at [88].

Jattan: I impose an aggregate term of imprisonment of 5 years, 10 months with an non-parole period of 3 years, 4 months: at [90].

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

Full text does not contain this section.

Medium Neutral Citation:	R v Cole; R v Jattan [2021] NSWDC 714
Hearing dates:	19 August 2021
Date of orders:	19 August 2021
Decision date:	19 August 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Cole: I impose an aggregate term of imprisonment of 5 years, 10 months with an non-parole period of 3 years, 4 months: at [88]. Jattan: I impose an aggregate term of imprisonment of 5 years, 10 months with an non-parole period of 3 years, 4 months: at [90].
Catchwords:	SENTENCING — Aggravating factors — In company — Planned or organised criminal activity — Record of previous convictions — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders e — Deterrence — Factual basis for sentence — Form 1 offences — General principles — Maximum penalty — Purposes of sentencing — Sentencing statistics SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Weapons Prohibition Act 1998
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571 Grabovac v R [2018] NSWCCA 100 Hoskins v R [2021] NSWCCA 169 Imbornone v R [2017] NSWCCA 144 Nye v The Queen [2018] NSWCCA 244 R v Dogan [2019] NSWDC 385 R v Khaddam [2019] NSWDC 732 R v Millwood [2012] NSWCCA 2 R v Qi [2019] NSWCCA 73 R v Qui [2019] NSWCCA 73 R v Qutami (2001) 127 A Crim R 369 R v Taylor & Rafferty [2021] NSWDC 11 R v Yiu; R v Yau [2018] NSWCCA 155 Rakielbakhour v DPP [2020] NSWSC 323 Tamer v R [2020] NSWCCA 333 Taysavang v R; Lee v R [2017] NSWCCA 146
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) Peter Cole (Co-offender) James Jattan (Co-offender)
Representation:	Mr J Hanna (Crown Prosecutor, Office of the Director of Public Prosecutions) Mr G Kumarashinhe (Counsel for Mr Cole) Mr B Cochrane (Counsel for Mr Jattan)
File Number(s):	2019/358808; 2019/358264