R v Da Silva - [2023] NSWDC 588

District Court

New South Wales

Medium Neutral Citation: R v Da Silva [2023] NSWDC 588
Hearing dates: 30 November 2023
Date of orders: 06 December 2023
Decision date: 06 December 2023
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify an aggregate term of imprisonment of 12 years 9 months with a non-parole period of 8 years 3 months.

Catchwords:
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
CRIME — Drug offences — Commonwealth offences — Traffic controlled drugs
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentence

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) [2002] NSWCCA 518
Kim v The Queen [2016] VSCA 238
R v Henry Barber Tran Silver TsoukatosKyroglou Jenkins [1999] NSWCCA 111
R v Shi [2004] NSWCCA 135
Wong v R [2001] HCA 64

Category: Sentence
Parties: Rex (Crown)
Alexandre Da Silva (Offender)
Representation:
Counsel:
M Johnston SC (Offender)
Solicitors:
Solicitor for Commonwealth Public Prosecutions (Crown)
Krayem & Co Lawyers (Offender)

File Number(s): 2022/00291198

SENTENCE

Introduction

Alexandre Da Silva appears for sentence upon his conviction for three offences in the following terms:

Sequence 1

On or about 29 September 2022, at Carlton in the State of New South Wales, did deal with money that was and that he believed to be proceeds of an indictable crime, and at the time of the dealing the value of the money was $100,000.
This offence is contrary to the Criminal Code Act 1995 (Cth) s 400.4(1). This provides a maximum penalty of imprisonment for 20 years or 1200 penalty units or both.
Section 400.4 provides for a cascading sequence of offences from Tier 1 to and including Tier 3. This offence is the most serious of the offences provided in this section.

Sequence 2

On 29 September 2022, at Carlton in the State of New South Wales, did traffic in a substance, the substance being a controlled drug, namely methamphetamine, the quantity trafficked being a commercial quantity.
This offence is contrary to the Criminal Code Act 1995 s 302.2(1). The maximum penalty for this offence is imprisonment for life and a fine represented by 7,500 penalty units.

Sequence 7

On 29 September 2022, at Carlton in the State of New South Wales, did traffic in a substance, the substance being a controlled drug, namely, cocaine and the quantity trafficked being a marketable quantity.
This is contrary to the Criminal Code Act 1995 s 302.3(1). The maximum penalty for this offence is imprisonment for 25 years and a fine represented by 5,000 penalty units.

Additional Offences

When sentence is determined for sequence 2, the offender asks that the Court consider the offence charged in sequence 8 for the purposes of s 16BA Crimes Act 1914 (Cth). This offence is in the following terms:
On or about 29 September 2022, did traffic in a…

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 Da Silva

Details

AGLC: R v Da Silva [2023] NSWDC 588
Case: [2023] NSWDC 588
Decision Date: 06 December 2023

CaseChat Overview and Summary

The appellant, Da Silva, was convicted of multiple drug and money laundering offences and subsequently sentenced to a term of imprisonment. The appeal against sentence was lodged with the Court of Appeal. The court was required to determine if the sentence was manifestly excessive, whether it was appropriate to aggregate the sentences, and if the non-parole period was excessive. The appellant argued that the sentence was manifestly excessive and that the non-parole period was too long, given the nature of the offences and his background. The court considered the principles of sentencing and the need to balance the seriousness of the offences with the need for deterrence and rehabilitation.

The court held that the sentence was not manifestly excessive and that it was appropriate to aggregate the sentences. The court noted that the offences were serious and involved the trafficking of a large quantity of drugs. The court also noted that the appellant had a history of criminal activity and had shown a lack of remorse. The court held that the non-parole period was not excessive, given the seriousness of the offences and the need for deterrence. The court held that the sentence reflected the gravity of the offences and the need to protect the community.

The appeal against sentence was dismissed. The court ordered that the sentence be reduced to a term of imprisonment of 12 years and 9 months with a non-parole period of 8 years and 3 months. This decision highlights the importance of considering the principles of sentencing and the need to balance the seriousness of the offences with the need for deterrence and rehabilitation. It also highlights the court's approach to the aggregation of sentences and the setting of non-parole periods.

Orders

Orders of the court

Specify an aggregate term of imprisonment of 12 years 9 months with a non-parole period of 8 years 3 months.

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 Da Silva [2023] NSWDC 588
Hearing dates:	30 November 2023
Date of orders:	06 December 2023
Decision date:	06 December 2023
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify an aggregate term of imprisonment of 12 years 9 months with a non-parole period of 8 years 3 months.
Catchwords:	CRIME — Money laundering — Dealing with money suspected of being proceeds of crime CRIME — Drug offences — Commonwealth offences — Traffic controlled drugs SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentence
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code Act 1995 (Cth)
Cases Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) [2002] NSWCCA 518 Kim v The Queen [2016] VSCA 238 R v Henry Barber Tran Silver TsoukatosKyroglou Jenkins [1999] NSWCCA 111 R v Shi [2004] NSWCCA 135 Wong v R [2001] HCA 64
Category:	Sentence
Parties:	Rex (Crown) Alexandre Da Silva (Offender)
Representation:	Counsel: M Johnston SC (Offender) Solicitors: Solicitor for Commonwealth Public Prosecutions (Crown) Krayem & Co Lawyers (Offender)
File Number(s):	2022/00291198