R v Gray - [2020] NSWDC 289

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Gray [2020] NSWDC 289
Hearing dates: 05 June 2020
Date of orders: 05 June 2020
Decision date: 05 June 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 62-64

Catchwords: CRIMINAL LAW – sentencing – drug supply offence – discount for guilty plea – impact of mental health diagnoses and drug abuse history on sentencing – whether an ICO or full-time custody appropriate for such offence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66, 69
Drug Misuse and Trafficking 1985 (NSW), ss 10, 25, 29
Cases Cited: Karout v R [2019] NSWCCA 253
MDZ v R [2011] NSWCCA 243
Muldrock v The Queen (2011) 244 CLR 120
Nairn v R [2015] NSWCCA 290
Parente v R (2017) 96 NSWLR 633
R v Fangaloka [2019] NSWCCA 173
R v Henry (1999) 46 NSWLR 346
R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264
R v Shi [2004] NSWCCA 135
Zreika v R (2012) 223 A Crim R 460
West, Trent v R [2017] NSWCCA 271
Category: Sentence
Parties: Director of Public Prosecutions
Mr SJ Gray
Representation:
Counsel:
Mr M Ainsworth for the offender
Solicitors:
Solicitor for the Director of Public Prosecutions
Cohort Lawyers for the offender

File Number(s): 2019/192143
Publication restriction: Nil

Judgment

INTRODUCTION

The offender has entered a plea to the offence that, on 20 June 2019, at Gorokan, he supplied the prohibited drug, being 65.42 grams of methylamphetamine, colloquially known as ‘ice’, contrary to s 25(1) of the Drug Misuse and Trafficking 1985 (NSW) (the ‘DMT Act’).
There is a back-up charge on a s 166 certificate, being that in the same circumstances, he was in possession of the same prohibited drug, in the same quantity, contrary to s 10(1) of the DMT Act.
Neither offence carries a standard non-parole period.

CIRCUMSTANCES OF OFFENDING

Agreed facts

The offending conduct occurred at the Bridge View Motel at 2 The Corso, Gorokan to the observation of Senior Constable Keane, in the company of other police officers. The agreed facts are centred upon Officer Keane’s observations.
They are, relevantly, that this group of police officers were at this motel for unrelated purposes. When the officers were in the kitchen, they observed (through a screen door) a white Toyota Yaris motor vehicle pull into the driveway.
A female was observed in the driver’s seat; and a male was in the front passenger seat. A third person was also in the rear passenger side of the car. The manager of the venue alerted the officers that the occupants of the car were not guests.
Office Keane, in the company of Senior Constable Sams, approached the car: SC Sams went to the left side; SC Keane went to the driver’s side.
After providing his own identification as a police officer, SC Keane opened the driver’s door and asked the driver if she was staying at the venue. She answered no. He then observed the male front seat…

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 Gray

Details

AGLC: R v Gray [2020] NSWDC 289
Case: [2020] NSWDC 289
Decision Date: 05 June 2020

CaseChat Overview and Summary

The case before the court was an appeal by the respondent against a sentence imposed for a drug supply offence. The respondent, Gray, was found guilty of the offence and sentenced to imprisonment. The appeal centred around the appropriateness of the sentence, particularly in light of Gray's mental health diagnoses and extensive drug abuse history. The appeal was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive, and if so, what alternative sentence might be appropriate. Specifically, the court had to consider whether an Intensive Corrections Order (ICO) or a term of full-time custody was more suitable given Gray's circumstances. The court also needed to determine the appropriate discount for Gray's early guilty plea and assess the impact of his mental health and drug abuse history on the sentencing process.

The court examined the severity of Gray's offence, his criminal history, and the principles of sentencing for drug supply offences. It was noted that Gray had a significant history of drug abuse and mental health issues, which the court considered as mitigating factors. However, the gravity of the offence and the need to deter similar conduct were also significant. Ultimately, the court determined that while the original sentence was not manifestly excessive, it could be varied to better reflect the mitigating factors. The court ordered a variation to an ICO, with specific conditions to address Gray's drug abuse and mental health needs. The orders also included provisions for monitoring and support during the period of the ICO.

Orders

Orders of the court

See paragraphs 62-64

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 Gray [2020] NSWDC 289
Hearing dates:	05 June 2020
Date of orders:	05 June 2020
Decision date:	05 June 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 62-64
Catchwords:	CRIMINAL LAW – sentencing – drug supply offence – discount for guilty plea – impact of mental health diagnoses and drug abuse history on sentencing – whether an ICO or full-time custody appropriate for such offence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66, 69 Drug Misuse and Trafficking 1985 (NSW), ss 10, 25, 29
Cases Cited:	Karout v R [2019] NSWCCA 253 MDZ v R [2011] NSWCCA 243 Muldrock v The Queen (2011) 244 CLR 120 Nairn v R [2015] NSWCCA 290 Parente v R (2017) 96 NSWLR 633 R v Fangaloka [2019] NSWCCA 173 R v Henry (1999) 46 NSWLR 346 R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264 R v Shi [2004] NSWCCA 135 Zreika v R (2012) 223 A Crim R 460 West, Trent v R [2017] NSWCCA 271
Category:	Sentence
Parties:	Director of Public Prosecutions Mr SJ Gray
Representation:	Counsel: Mr M Ainsworth for the offender Solicitors: Solicitor for the Director of Public Prosecutions Cohort Lawyers for the offender
File Number(s):	2019/192143
Publication restriction:	Nil