R v Hay; R v Cross

[2023] NSWDC 234

District Court

New South Wales

Medium Neutral Citation:

R v Hay; R v Cross [2023] NSWDC 234

Hearing dates:

15 June 2023

Date of orders:

29 June 2023

Decision date:

29 June 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [50 & 83]

Catchwords:

CRIME — Drug offences — Commonwealth offences — Attempted import marketable quantity of border-controlled drug

Legislation Cited:

Criminal Code Act 1995 (Cth)

Crimes Act 1914 (Cth)

Cases Cited:

Nasrallah v R [2021] NSWCCA 207

Bugmy v The Queen [2013] HCA 37

Huynh v The Queen [2022] VSCA 49

Siddiqi v The Queen [2015] NSWCCA 169

Robson Bolan [2022] NSWCCA 1

Totaan v R [2022] NSWCCA 7

Dunning v Tasmania [2018] TASCCA 21

Category:

Sentence

Parties:

Rex (Crown)
Tristina Hay (Offender)
Samuel David Cross (Offender)

Representation:

Hirst for the Office of the Commonwealth Director of Public Prosecutions
Sayad for Cross
Sahinovic for Hay

File Number(s):

2021/00356519, 2021/00356522

Publication restriction:

NA

JUDGMENT

1. Samuel David Cross and Tristina Hay each appear for sentence on one charge pursuant to sections 11.1(1) 307.2(1) and s11.2A of the Criminal Code (Cth) (“CCC”) of attempting to import border-controlled drugs, namely cocaine in an amount of a marketable quantity. The offenders will be referred to collectively as the offenders and where necessary to identify them individually by their surname or as the offender.

2. The offence has a maximum penalty of 25 years imprisonment. The maximum sentence serves as a legislative guidepost indicating the view of the legislature as to the seriousness of the offence to assist in arriving at the appropriate sentence.

3. The offence is made up by two occasions of attempting to import cocaine. On the first occasion the quantity involved was pure cocaine of 327.14 g and on the second the quantity involved was 370.239 g of pure cocaine, giving a total of approximately 697 g. The date range in which this conduct occurred was between 2 August 2021 and 19 October 2021. Both offenders were arrested on 21 December 2021. Hay was held in custody until 25 July 2022, so a period of 7 months and 5 days. Cross has been held in custody since his arrest so a period as at the date of these reasons of 18 months and 9 days.

4. There are no matters to be dealt with by way of a section 16AB schedule. Neither offender was on conditional liberty at the time of the offending.

The facts

5. The facts of this offending are set out in detail in the agreed facts for sentence. The facts are the same in respect of each offender. Without in any way diminishing the significance of the facts set out it is possible to shortly summarise what has occurred. In the period of the offending the offenders resided together at an address in Tallebudgera, Queensland. They had been in a relationship at the time of the offending for about 12 years. Cross has a sister named Hannah Wilson, a co-offender, and in mid July 2021 she purchased a property in…