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R v Highley

R v Highley

Case [2020] NSWDC 655 24 June 2020

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Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Highley [2020] NSWDC 655
Hearing dates: 22 June 2020
Decision date: 24 June 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 3 years 9 months; non-parole period 2 years 3 months imprisonment.
Forfeiture order: 3 mobile phones and to pay the State of New South Wales the sum of $3,400.

Catchwords:
CRIME – sentence - supply prohibited drugs on an ongoing basis - supply prohibited drug > indictable quantity - prior criminal history of violence not drug supply – breach of conditional liberty - disadvantaged upbringing – totality of criminality – purposes of sentencing – plea of guilty – remorse – special circumstances.

Legislation Cited:
Confiscation of Proceeds of Crime Act 1989
Crimes(Sentencing Procedure)Act 1999
Drug Court Act
DrugMisuseand TraffickingAct 1985

Cases Cited:
Bugmyv R [2013] NSWSC 1885; HCA 37
DangvR [2013] NSWCCA 246
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Holder v R (1983) 3 NSWLR 346
Johnson v R [2004] HCA 15
MacDonnell v R [2002] 128 A Crim R 34
Mill v R [1998]166 CLR
Munda v Western Australia [2013] HCA 38
Parente v R [2017] NSWCCA 284
PearcevR [1998] 194 CLR 610
R v Engert (1995) 84 A Crim R 67
R v Israil [2002] NSWCCA 255
R v Letteri (unreported NSWCCA 18 March 1992)
R v Scognamiglio (1991) 56 A Crim R 81
RvSmiroldo [2000] NSWCCA 120
R vXX (2009) 195 A Crim R 38

Category: Sentence
Parties: Regina (Crown)
Paul Anthony Highly (Offender)
Representation: Solicitors:
Mr D Wilcox-Watson (DPP)
Mr Kwan (Offender)

File Number(s): 2019/00196963
Publication restriction: No

Judgment

Mr Highley, my practice is to tell people in advance what sentence is to be imposed. In your particular case I am going to fix an aggregate sentence of three years, nine months imprisonment commencing on 25 July 2019 and expiring on 24 April 2023. I am going to fix a non‑parole period of two years, three months imprisonment commencing on 25 July 2019 expiring on 24 October 2021.
I will explain the reason that the start date is July, not June. It is complicated by the fact that it was not addressed when you came before me last time that you had been sentenced while you were in custody for these matters in the Local Court. I do not know why you were given eight months imprisonment with one month non‑parole when you are going to be in custody for many months ahead, but that is the reality of what I have to deal with now.
The offender Paul Anthony Highley appears today for sentence in relation to three principal offences, one offence of ongoing supply of prohibited drugs contrary to s 25A of the Drug Misuse and Trafficking Act 1985, an offence, on the facts available to the Court, that occurred between 12 February 2019 and 6 March 2019. That is described…

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 Highley

Details

AGLC: R v Highley [2020] NSWDC 655
Case: [2020] NSWDC 655
Decision Date: 24 June 2020

CaseChat Overview and Summary

The case of R v Highley came before the court, where the defendant was charged with supplying prohibited drugs on an ongoing basis and with supplying a drug in an indictable quantity. The defendant had a prior criminal history of violence but not of drug supply, and had also breached a conditional liberty. The defendant's upbringing was disadvantaged, and the totality of their criminality, the purposes of sentencing, their guilty plea, and their remorse were all taken into consideration.

The court was required to determine the appropriate sentence for the defendant, taking into account the totality of their criminality, the purposes of sentencing, and the special circumstances of the case. The court had to weigh the seriousness of the offences against the defendant's background and the likelihood of rehabilitation. The court also had to consider the defendant's guilty plea and their level of remorse.

The court considered the totality of the defendant's criminality, which included their prior criminal history of violence and their disadvantaged upbringing. The court also took into account the purposes of sentencing, which include punishment, deterrence, and rehabilitation. The court noted the defendant's guilty plea and their level of remorse, which were both mitigating factors. However, the court also considered the seriousness of the offences, which involved the supply of prohibited drugs on an ongoing basis and the supply of a drug in an indictable quantity. The court ultimately determined that an aggregate term of imprisonment of 3 years 9 months was appropriate, with a non-parole period of 2 years 3 months. The court also made a forfeiture order for 3 mobile phones and a payment of $3,400 to the State of New South Wales.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 3 years 9 months; non-parole period 2 years 3 months imprisonment.

Forfeiture order: 3 mobile phones and to pay the State of New South Wales the sum of $3,400.

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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Citations

AGLC Citation

R v Highley [2020] NSWDC 655

Most Recent Citation

Cooper v The Queen [2021] NSWCCA 292

Cases citing this decision · 2 of 2 shown

Cooper v The Queen
[2021] NSWCCA 292 Para 90

…relies upon statistics held by the Judicial Commission and three decisions of the District Court, being R v Spiroulias [2020] NSWDC 876, R v Highley [2020] NSWDC 655, and R v Loudon [2020] NSWDC 57, even whilst acknowledging the limitations on the utility of such material.…
R v Jones (No 2)
[2021] NSWDC 591 Para 2

…and December 1983. On 24 February 2020 I found him unfit to be tried: ss 11-14 Mental Health (Forensic Provisions) Act 1990 (now repealed): R v Jones [2020] NSWDC 655. The matter was referred to the Mental Health Tribunal who then determined Mr Jones would not become fit to be tried within 12 months.…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Parente v R
[2017] NSWCCA 284 Para 50

…rrence and protection of the community are at the forefront in sentencing people involved in drug supply. The Court of Criminal Appeal in Parente [2017] NSWCCA 284 particularly at [107]-[115] of course turned away from an absolute rule in sentencing drug suppliers. The principles of sentencing have to be applied as…
R v Bugmy
[2013] NSWSC 1885 Para 46

…ysfunction” that there is no sunset clause on these matters for people who have been afflicted with disadvantages. As was made clear in Bugmy v R [2013] NSWSC 1885; HCA 37, and was made clear subsequently, people who can demonstrate, or who have shown, a background of dysfunction and disadvantage are entitled the pr…
Dang v R
[2013] NSWCCA 246 Para 49

…ective seriousness of the offending. It is relevant to some extent of the assessment of his moral culpability which I accept. For example, Dang v R [2013] NSWCCA 246 particularly at [30]. I am prepared to accept that, but in terms of the matters arising out of the psychological report, in the absence of a direct cau…
Munda v Western Australia
[2013] HCA 38 Para 47

…Now of course to come back to what was said in Bugmy v R and was also in different words discussed by the High Court in Munda v Western Australia [2013] HCA 38, a case decided in fact on the same day as Bugmy , the situation of disadvantage for example identified in this particular case will vary from case to ca…
Muldrock v The Queen
[2011] HCA 39 Para 44

…ceed accordingly. Spigelman CJ said in the decision of R v Way [2004] NSWCCA 131, largely set aside by the decision of the High Court in Muldrock v R [2011] HCA 39; 244 CLR 120 in terms of a specific principle regarding standard non-parole periods, about the lack of mathematical precision required in fixing sent…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 11

…e in the written submissions to the very well-known summary of the principals as they then stood by McClellan CJ at CL in DPP(Cth) v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178].…
Markarian v The Queen
[2005] HCA 25 Para 44

…quired in fixing sentences. Entirely consistent, for example, with the approach taken by the High Court subsequently in the decision of Markarian v R [2005] HCA 25; 228 CLR 357. In other words a particular quantity of a particular drug supplied over a period of time does not permit arriving at a particular sente…
R v Way
[2004] NSWCCA 131 Para 44

…quantity in a minimum amount, it may be that the calculation of the sentence should proceed accordingly. Spigelman CJ said in the decision of R v Way [2004] NSWCCA 131, largely set aside by the decision of the High Court in Muldrock v R [2011] HCA 39; 244 CLR 120 in terms of a specific principle regarding standard n…
Johnson v The Queen
[2004] HCA 15 Para 51

…610, particularly in [45]. In the context of Pearce principals I am mindful of what the High Court said about totality of criminality in Johnson v R [2004] HCA 15, following upon the 1988 decision of Mill v R [1998]166 CLR, particularly at pp 62-63. There is also the summation of principles by Hall J in the New…
R v Israil
[2002] NSWCCA 255 Para 12

…ri (unreported NSWCCA 18 March 1992). Of course, Gleeson CJ’s judgment in R v Engert (1995) 84 A Crim R 67, Spigelman CJ’s judgment in R v Israil [2002] NSWCCA 255. The problem is the evidence does not amount to a basis for concluding that lesser weight should be given to general deterrence or lesser weight should b…
R v Smiroldo
[2000] NSWCCA 120 Para 12

…the ongoing supply charges occurs in the context of a consideration of particularly the decision of the Court of Criminal Appeal in the R v Smiroldo [2000] NSWCCA 120. I do not rely upon that sentence for comparative sentencing purposes, but in that judgment, RS Hulme J, bearing in mind the provision had only being…
Pearce v The Queen
[1998] HCA 57 Para 51

…r each offence then turn to the totality of the criminality discussed by the majority of the High Court in the conviction appeal of Pearce v R [1998] 194 CLR 610, particularly in [45]. In the context of Pearce principals I am mindful of what the High Court said about totality of criminality in Johnson v R [200…

Legislation cited in this decision · 2

Confiscation of Proceeds of Crime Act 1989 (NSW)
1 mention (from Para 60)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v Highley [2020] NSWDC 655
Hearing dates:	22 June 2020
Decision date:	24 June 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 3 years 9 months; non-parole period 2 years 3 months imprisonment. Forfeiture order: 3 mobile phones and to pay the State of New South Wales the sum of $3,400.
Catchwords:	CRIME – sentence - supply prohibited drugs on an ongoing basis - supply prohibited drug > indictable quantity - prior criminal history of violence not drug supply – breach of conditional liberty - disadvantaged upbringing – totality of criminality – purposes of sentencing – plea of guilty – remorse – special circumstances.
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes(Sentencing Procedure)Act 1999 Drug Court Act DrugMisuseand TraffickingAct 1985
Cases Cited:	Bugmyv R [2013] NSWSC 1885; HCA 37 DangvR [2013] NSWCCA 246 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Holder v R (1983) 3 NSWLR 346 Johnson v R [2004] HCA 15 MacDonnell v R [2002] 128 A Crim R 34 Mill v R [1998]166 CLR Munda v Western Australia [2013] HCA 38 Parente v R [2017] NSWCCA 284 PearcevR [1998] 194 CLR 610 R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 R v Letteri (unreported NSWCCA 18 March 1992) R v Scognamiglio (1991) 56 A Crim R 81 RvSmiroldo [2000] NSWCCA 120 R vXX (2009) 195 A Crim R 38
Category:	Sentence
Parties:	Regina (Crown) Paul Anthony Highly (Offender)
Representation:	Solicitors: Mr D Wilcox-Watson (DPP) Mr Kwan (Offender)
File Number(s):	2019/00196963
Publication restriction:	No