District Court
New South Wales
Medium Neutral Citation: R v Kelly [2020] NSWDC 232 Hearing dates: 14 May 2020 Date of orders: 22 May 2020 Decision date: 22 May 2020 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [74]
Catchwords: Drugs Misuse and Trafficking Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)Legislation Cited: Drugs Misuse and Trafficking Act 1985 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)Cases Cited: R v Way [2004] NSWCCA 131
Muldrock v The Queen [2011] HCA 39
Newman (a pseudonym) v R [2019] NSWCCA 157
Wong v The Queen [2001] HCA 64
Yun v R [2017] NSWCCA 317
DPP v De La Rosa (2010) 79 NSWLR 1
BP v R [2010] NSWCCA 159
R v Farah (Unreported CCA 11 December 1998)
Parente [2017] NSWCCA 284
Markarian v The Queen (2005) 228 CLR 357
R v Fangaloka [2019] NSWCCA 173
R v Qi [2019] NSWCCA 73
R v Lattouf (Unreported NSWCCA 12 December 1996)
Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.Category: Sentence Parties: Regina (Crown)
Kelly (Accused)Representation: Counsel: Ms Oliver for the Crown
Solicitors:
Ms Graham for the offender
File Number(s): 2018/00393608 Publication restriction: Unrestricted
Judgment
Introduction
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The offender appears for sentence on 3 very serious charges committed in breach of section 25(2) of the Drugs Misuse and Trafficking Act (“the Act”). The offences occurred within one month. Two of them are supplying a prohibited drug, specifically methylenedioxyamphetamine (MDA) in an amount not less than the commercial quantity (counts 1 and 2). Count 3 was of supplying MDA in an amount not less than the large commercial quantity.
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Counts 1 and 2 have a maximum sentence of 20 years imprisonment and/or a penalty of 3500 penalty units, and a standard non-parole period of 10 years. Count 3 has a maximum penalty of life imprisonment and/or a penalty of 5000 penalty units, with a 15 year standard non-parole period.
Standard non parole period
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The standard non-parole periods are to be considered a guidepost in the same way as the maximum sentence is to be considered a guidepost. I take the view that there is nothing in the Division 1A Crimes (Sentencing Procedure) Act (“the Act”) provisions to the effect that these provisions only apply to matters that have been determined by a trial, and not those that have proceeded by a plea. I note in R v Way [2004] NSWCCA 131, the Court of Criminal Appeal had held that the standard non-parole period only applies to sentencing for an offence after conviction at trial. This point was noted in Muldrock at [23]. Then at [29] of Muldrock it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that “the obligation applies in sentencing for all…
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- AGLC
- R v Kelly [2020] NSWDC 232
- Case
- [2020] NSWDC 232
- Decision Date
CaseChat Overview and Summary
The court was required to address several critical legal issues. Firstly, whether Kelly had the requisite intent to traffic the drugs, which is an essential element of the offence. Secondly, the court had to consider the defence of duress, which Kelly claimed absolved him of responsibility for the drug trafficking. Thirdly, the court needed to decide on the appropriate sentence if Kelly was found guilty, considering the guidelines set out in the Crimes (Sentencing Procedure) Act 1999 (NSW).
The court examined the evidence and found that Kelly's intent to traffic the drugs was evident from the quantity and the manner in which the drugs were possessed. The court rejected Kelly's claim of duress, finding that there was insufficient evidence to support this defence. The court then proceeded to sentence Kelly in accordance with the statutory guidelines, taking into account the nature and circumstances of the offence. The final orders, as detailed at [74], reflect the court's determination on the charges and the appropriate sentence.
Orders
Orders of the court
See [74]
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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