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 addictionLegislation 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 127Texts 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
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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).
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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.
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In short, between 15 January…
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- AGLC
- R v Fagan [2019] NSWDC 777
- Case
- [2019] NSWDC 777
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to address included the objective seriousness of the offence, the need for deterrence, and the assessment of mitigating and aggravating factors. The court had to determine the appropriate sentence by considering the defendant's good character, the presence of remorse, and the circumstances of the offence. Additionally, the court needed to establish the relevant matters, including the role of co-offenders and the principle of parity in sentencing. The defendant's drug addiction was also considered as a mitigating factor in the sentencing process.
The court, after considering all the relevant factors, concluded that the defendant should be sentenced to a term of imprisonment of 13 years, with a non-parole period of 7 years and 3 months. The decision took into account the defendant's guilty plea, his good character, and the presence of remorse. The court also considered the objective seriousness of the offence and the need for deterrence. The court's decision was influenced by the defendant's drug addiction, which was seen as a mitigating factor. The court balanced all these factors to arrive at the final sentence.
Orders
Orders of the court
A term of imprisonment of 13 years with a non-parole period 7 years, 3 months: at [46].
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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