R v Fagan

[2019] NSWDC 777

District Court

New South Wales

Medium Neutral Citation:

R v Fagan [2019] NSWDC 777

Hearing dates:

30 July 2019

Date of orders:

30 July 2019

Decision date:

30 July 2019

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of 13 years with a non-parole period 7 years, 3 months: at [46].

Catchwords:

CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug
SENTENCING — Mitigating factors — Good character Plea of guilty — Remorse
SENTENCING — Relevant factors on sentence — Circumstances of offence Objective seriousness — Deterrence — Establishing relevant matters — General principles — Co-offenders — Parity
SENTENCING — Subjective considerations on sentence — Drug addiction

Legislation Cited:

Court Suppression and Non Publication Order Act 2010
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)

Cases Cited:

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
Klomfar v R [2019] NSWCCA 61
Lau v The Queen [2011] VSCA 324
R v Zalapa (unreported, NSWDC M L Williams SC DCJ, 31 May 2018)
R v Nguyen; R v Pham [2010] NSWCCA 238
R v Nicketic [2002] NSWCCA 425
R v Phelps (unreported, NSWDC, M L Williams SC DCJ, 6 April 2018)
R v Phelps; R v Zalapa [2018] NSWCCA 191
R v Qutami (2001) 127 A Crim R 369
R v Schwartz [2018] NSWDC 118
Van Zwam v The Queen [2017] NSWCCA 127

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

  Jonathan Fagan (Offender)

Representation:

Mr K Perrignon (Crown)

 

Mr M Johnstone SC (Counsel for the Offender)

  Mr M Smith (Counsel for the Offender)

File Number(s):

2015/270614; 2015/285417

Publication restriction:

NON-PUBLICATION ORDER re the provision of any confidential material, evidence or submissions tendered in closed court or referred to during proceedings

Judgment

1. A 34 year old man faces a maximum sentence of life imprisonment for his substantial involvement in the importation of border controlled drugs. For much of his education, he had the benefit of attending the Scots College in Sydney, and as was said by Berman DCJ in sentencing a co-offender, there is very little, if any, that could be said by way of a disadvantaged background for this young man. He had every opportunity available to him, on the evidence that I have in front of me. He has pleaded guilty to one count of importing a commercial quantity of border controlled drug between 15 January 2014 and 3 August 2015 under s 307 of the Criminal Code1995 (Cth).

2. I will allow a 20% discount on a term of imprisonment due to the plea of guilty in the circumstances set out in the evidence and the submissions to which I will refer. A further 15% discount on a term of imprisonment will be allowed in relation to the matters addressed in Exhibit C and during closed court. A total discount of 35% on a term of imprisonment will be imposed.

3. In short, between 15 January…