Legal Research
Cases
R v Doherty

R v Doherty

Case [2019] NSWDC 515 20 September 2019

Criminal Liability

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Doherty [2019] NSWDC 515
Hearing dates: 1 March 2019, 29 March 2019, 14 June 2019,16 August 2019
Decision date: 20 September 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 6 years. Non parole period of 3 years.

Catchwords: SENTENCING - Sentencing Factors – aid and abet attempt to import border controlled drug - general propositions that guide assessments of objective seriousness - fact finding - offender’s role - wilful ignorance - trusted underling – limited role - role not very minor nor inconsequential - early plea – parity – delay - significant efforts to rehabilitate - hardship to family - other impacts of imprisonment - considerations when sentencing for drug importation offences – maximum penalty - ICO not appropriate
Legislation Cited: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Cases Cited: Afu v R [2017] NSWCCA 246
Barbaro v The Queen (2014) 253 CLR 58
Bugmy v The Queen (1990) 169 CLR 525
GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198
Green v The Queen (2011) 244CLR 462
Hili v The Queen (2010) 242 CLR 520
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Power v The Queen (1974) 131 CLR 623
R v Considine [2013 NSWCCA 97
R v El Jamal [2019] NSWDC153
R v Karam [2013] NSWCCA 53
R v La Cerf (1975) 13 SASR 237; (1976) 8 ALR 349
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
The Queen v Olbrich (1999) 199 CLR 270
R v Qi [2019] NSWCCA 73
R v Riddell (2009) 194 A Crim R 524
R v Stanmore, unreported, NSWDC, 3/10/2018
Regina v M A [2004] NSWCCA 92 (2004) 145 A Crim R 434
The Queen v Pham [2015] HCA 39
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Sentence
Parties: Rhys William Doherty (the offender)
Director of Public Prosecutions (Commonwealth)
Representation:
Counsel:
Mr A Goldsworthy (for the offender)
Solicitors:
Tully & Chiper Lawyers (for the offender)
Mr K Kanagasabapathy (for Director of Public Prosecutions, Commonwealth)

File Number(s): 2016/00183061

Table of contents

Introduction - paragraph 1
Summary of facts for sentence - paragraph 7
A dispute - how should the agreed facts be interpreted. - paragraph 29
Objective seriousness - general principles - paragraph 32
The offender’s version - paragraph 34
Mr Costello’s Report - paragraph 38
Determination – factual issue - paragraph 39
Objective seriousness – Findings - paragraph 46
Other matters - paragraph 48
Doherty’s subjective case - paragraph 49
Parity - paragraph 53
Submissions - paragraph 59
Purposes of Sentencing - paragraph 66
Parole - paragraph 71
Synthesis - paragraph 73
Order - paragraph 78

Judgment

Introduction

Rhys Doherty, the offender, has accepted his guilt of a very serious offence -…

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 Doherty

Details

AGLC: R v Doherty [2019] NSWDC 515
Case: [2019] NSWDC 515
Decision Date: 20 September 2019

CaseChat Overview and Summary

In the case of R v Doherty, the defendant stood accused of aiding and abetting an attempt to import a border-controlled drug. The matter was heard and determined in a court of competent jurisdiction, where the primary focus was the sentencing implications arising from the defendant's involvement in the offence.

The court was tasked with identifying and weighing various legal factors pertinent to sentencing, including the nature and circumstances of the offence, the defendant's role, the presence of any mitigating factors, and the broader considerations relevant to drug importation offences. The court examined the general propositions that guide assessments of the objective seriousness of such offences, particularly focusing on the defendant's role as a trusted underling and the extent of his wilful ignorance.

In its reasoning, the court highlighted that while the defendant's role was limited, it was neither very minor nor inconsequential. The court acknowledged the defendant's early plea and significant efforts at rehabilitation, as well as the potential hardship to his family and other impacts of imprisonment. However, these mitigating factors were balanced against the severity of the offence and the need for deterrence. The court ultimately determined that a term of imprisonment was warranted, with a sentence of six years and a non-parole period of three years, deeming an intensive correction order inappropriate in this context.

Orders

Orders of the court

Sentenced to a term of imprisonment of 6 years. Non parole period of 3 years.

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.

Citations

AGLC Citation

R v Doherty [2019] NSWDC 515

Most Recent Citation

Cases citing this decision · 6 of 6 shown

Almeida v Metsquare Pty Ltd
[2021] NSWPICMP 8 Para 4

…tion that pro-rata test ignores the individual circumstances at which damage is caused through exposure to noise and is an unacceptable test. [7] [2019] NSWDC 515.…
Madul v the Queen
[2018] VSCA 142 Para 1

…mmow, Kirby and Hayne JJ); Azzopardi v The Queen (2001) 205 CLR 50, 73–75 [61]–[68] (Gaudron, Gummow, Kirby and Hayne JJ); R v Doherty [2003] 6 VR 393; Butler v The Queen [2011] VSCA 417 [143]–[155] (Ashley JA with whom Ross AJA agreed); Lowe v the Queen [2015] 48 VR 35, 409–412 [210]–[221] (Redlich JA, Rob…
R v Carmody
[2016] ACTSC 382 Para 1

…necessary to account for the formation of the relevant intent. Such was held by the Victorian Court of Appeal in R v Doherty [2003] VSCA 158; 6 VR 393 at 405; [17]; 414-5; [36] to be, relevantly, for sentencing, an unpremeditated crime. As the Quebec Court of Appeal decided in R v. Lauzon (1977) 19 Criminal…
Sooklal and Francis Mansingh v. The State (Trinidad and Tobago)
[1999] UKPC 37

…1. The appellants Narine Sooklal ("Sooklal") and Francis Mansingh ("Mansingh") together with Sooklal’s 15 year old son Sharma Sooklal (known as "Ding") were charged jointly with the murder of Mobina Ali on the night of 10th December 1992. The case was tried in the High Court of Justice by Volney J. …
R v O'Connor
[1980] HCA 17

…24. It seems to me that the proper starting point for a consideration of the present question is to recognize that the House of Lords' decision in Majewski is not a revolutionary decision. It does not break new ground. In essence, it confirms the common law as it has been understood and applied for …
Veen v The Queen
[1979] HCA 7

…15. There is another and quite distinct aspect of the sentence that occasions concern. It is by no means clear to me that the jury foreman's answer, so much relied upon in sentencing, in fact disposed of the question of provocation, as his Honour thought it did, leaving diminished responsibility as …

View all 6 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Qi
[2019] NSWCCA 73 Para 65

…mum penalty of life imprisonment is that only in very exceptional circumstances would a sentence other than full-time imprisonment be imposed: R v Qi [2019] NSWCCA 73. Mr Goldsworthy submits that this is such an exceptional case. I cannot accept that submission.…
Afu v R
[2017] NSWCCA 246 Para 53

…n as parity. It is the classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246.…
R v Pham
[2015] HCA 39

…(2009) 194 A Crim R 524 R v Stanmore, unreported, NSWDC, 3/10/2018 Regina v M A [2004] NSWCCA 92 (2004) 145 A Crim R 434 The Queen v Pham [2015] HCA 39 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Sentence Parties: Rhys William Doherty (th…
Barbaro v The Queen
[2014] HCA 2 Para 69

…guide and can help establish a range, however each case and each offender is individual: See Hili v The Queen (2010) 242 CLR 520, Barbaro v The Queen (2014) 253 CLR 58 at [74].…
R v Karan
[2013] NSWCCA 53 Para 68

…tics and the other cases to which I have been referred by the prosecution and Mr Goldsworthy: Mr Kanagasabapathy made specific reference to R v Karam [2013] NSWCCA 53; R v Considine [2013 NSWCCA 97 and R v Riddell (2009) 194 A Crim R 524.…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 53

…will serve in prison.” This principle is known as parity. It is the classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246.…
Hili v The Queen
[2010] HCA 45 Para 69

…sentences for an offence may serve as a guide and can help establish a range, however each case and each offender is individual: See Hili v The Queen (2010) 242 CLR 520, Barbaro v The Queen (2014) 253 CLR 58 at [74].…
R v Nguyen; R v Pham
[2010] NSWCCA 238 Para 33

…General propositions that guide assessments of objective seriousness in matters such as this were conveniently collated in R v Nguyen ; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106, at [72] (citations omitted). Relevantly, here, they include:…
Markarian v The Queen
[2005] HCA 25 Para 67

…; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick." Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372 [31].…
GAS v The Queen
[2004] HCA 22 Para 32

…As the High Court explained in GAS v The Queen ; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30] and [31], while there may be an understanding, between the prosecution and the defence, as to evidence that will be led on sentence that does not bind the judge, except in the practical sense that the judge…
R v MA
[2004] NSWCCA 92 Para 71

…the different purposes behind each function. Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525 at 531-2; Regina v M A [2004] NSWCCA 92 (2004) 145 A Crim R 434.…
Cheung v The Queen
[2001] HCA 67

…de the sentence to be imposed: The Queen v Olbrich (1999) 199 CLR 270. For that purpose, the judge must find the relevant facts: Cheung v The Queen (2001) 209 CLR 1 at 9-11 [4]-[10]. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidenc…
Wong v The Queen
[2001] HCA 64 Para 66

…stances. A judge must take account of all of the relevant factors and arrive at a single result which takes due account of them all: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611 [75]; [2001] HCA 64.…
R v Olbrich
[1999] HCA 54 Para 46

…As the High Court made clear in The Queen v Olbrich (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. The High Court recognised that sometimes a sentencing Court must sentence according to what…
Bugmy v The Queen
[1990] HCA 18 Para 71

…in which they are relevant differ due to the different purposes behind each function. Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525 at 531-2; Regina v M A [2004] NSWCCA 92 (2004) 145 A Crim R 434.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 66

…The factors bearing on the determination of sentence will frequently pull in different directions: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, at 476. A judge must balance often incommensurable factors and arrive at a sentence that is just in all of the circumstances. A judge must take account of…
He Kaw Teh v The Queen
[1985] HCA 43 Para 41

…Code Act 1995 (C’th) s 5.4. To use pre-Criminal Code language, his attitude was one of “wilful blindness:” see He Kaw the v The Queen (1985) 157 CLR 523, at [10] and [18].…
Power v The Queen
[1974] HCA 26 Para 71

…ht to be attached to such factors and the way in which they are relevant differ due to the different purposes behind each function. Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525 at 531-2; Regina v M A [2004] NSWCCA 92 (2004) 145 A Crim R 434.…
The Queen v Olbrich
[1999] HCA 5418 Para 46

…As the High Court made clear in The Queen v Olbrich (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. The High Court recognised that sometimes a sentencing Court must sentence according to what is known…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
2 mentions (from Para 3)
Criminal Code Act 1995 (Cth)
5.4 2 mentions (from Para 1)

Medium Neutral Citation:	R v Doherty [2019] NSWDC 515
Hearing dates:	1 March 2019, 29 March 2019, 14 June 2019,16 August 2019
Decision date:	20 September 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 6 years. Non parole period of 3 years.
Catchwords:	SENTENCING - Sentencing Factors – aid and abet attempt to import border controlled drug - general propositions that guide assessments of objective seriousness - fact finding - offender’s role - wilful ignorance - trusted underling – limited role - role not very minor nor inconsequential - early plea – parity – delay - significant efforts to rehabilitate - hardship to family - other impacts of imprisonment - considerations when sentencing for drug importation offences – maximum penalty - ICO not appropriate
Legislation Cited:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)
Cases Cited:	Afu v R [2017] NSWCCA 246 Barbaro v The Queen (2014) 253 CLR 58 Bugmy v The Queen (1990) 169 CLR 525 GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 Green v The Queen (2011) 244CLR 462 Hili v The Queen (2010) 242 CLR 520 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Power v The Queen (1974) 131 CLR 623 R v Considine [2013 NSWCCA 97 R v El Jamal [2019] NSWDC153 R v Karam [2013] NSWCCA 53 R v La Cerf (1975) 13 SASR 237; (1976) 8 ALR 349 R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 The Queen v Olbrich (1999) 199 CLR 270 R v Qi [2019] NSWCCA 73 R v Riddell (2009) 194 A Crim R 524 R v Stanmore, unreported, NSWDC, 3/10/2018 Regina v M A [2004] NSWCCA 92 (2004) 145 A Crim R 434 The Queen v Pham [2015] HCA 39 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category:	Sentence
Parties:	Rhys William Doherty (the offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: Mr A Goldsworthy (for the offender) Solicitors: Tully & Chiper Lawyers (for the offender) Mr K Kanagasabapathy (for Director of Public Prosecutions, Commonwealth)
File Number(s):	2016/00183061