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R v Mella

R v Mella

Case [2017] NSWDC 193 15 June 2017

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District Court

New South Wales

Medium Neutral Citation: R v Mella [2017] NSWDC 193
Hearing dates: 14, 15 June 2017
Date of orders: 15 June 2017
Decision date: 15 June 2017
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Aggregate sentence of 6 years, with a non-parole period of 3 years 9 months.

Catchwords: CRIME – supplying of cocaine – two offences of supplying drugs on an ongoing basis, contrary to section 25A(1) – one offence of offering to supply a commercial quantity of the drug, contrary t section 25(2) – one offence of supplying a prohibited drug contrary to section 25(1) – pleas of guilty – discount for onerous bail conditions for over two years
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Cases Cited: Botero (unreported, NSWCCA, 24 June 1998)
EF v Regina [2015] NSWCCA 36
McKibben v R [2007] NSWCCA 89
Mirza v R [2007] NSWCCA 248
Nguyen v Regina (2011) 208 A Crim R 432
Paxton v R (2011) 219 A Crim R 104
R v Cartwright (1989) 17 NSWLR 243
R v Chan [1999] NSWCCA 103
R v Dang [2005] NSWCCA 430
R v Des Rosiers (2006) 159 A Crim R 549
R v Gao [2007] NSWCCA 343
R v Giang [2005] NSWCCA 387
R v Hoon [2000] NSWCCA 137
R v Jajou [2009] NSWCCA 167: (2009) 196 A Crim R 370
R v Khamas [1999] NSWCCA 436; (1999) 108 A Crim R 499
R v MRN [2006] NSWCCA 155
R v Naipoon (2003) 56 NSWLR 284
R v Shi [2004] NSWCCA 135
R v Way (2004) 60 NSWLR 168
The Queen v Olbrich (1999) 199 CLR 270
Vu v R [2006] NSWCCA 188
Category: Sentence
Parties: Regina (Crown)
Robert Aldo Mella (Offender)
Representation:
Counsel:
S Stuart (Crown)
G Brady SC (Offender)
Solicitors:
Solicitors for the ODPP (Crown)
Barraket Stanton Lawyers (Offender)

File Number(s): 2015/115322
Publication restriction: Nil

Judgment

HIS HONOUR: Robert Aldo Mella stands for sentence for four offences to which he pleaded guilty. At the time of the offences he was 29 years old. He pleaded guilty to the first two charges at an early stage in the Local Court and pleaded guilty to the final two charges on 13 September 2016 after the matter had been listed for hearing in Sydney on 11 September 2016 in this Court. However, conveniently the four charges have been listed in the one indictment presented on 13 September 2016 which is the only indictment I shall refer to in these reasons.
A short overview of the crimes committed by the offender is contained in the first eight paragraphs of the agreed facts. In citing these agreed facts I would use some licence in correcting poor expressions of English and poor grammar, and excluding unnecessary material.
In March and April 2015 the offender operated a cocaine “delivery service” to a client base that exceeded 900 customers primarily in the Sydney CBD, the inner suburbs and in particular the…

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 Mella

Details

AGLC: R v Mella [2017] NSWDC 193
Case: [2017] NSWDC 193
Decision Date: 15 June 2017

CaseChat Overview and Summary

The case of R v Mella involved the respondent, who was convicted of multiple drug-related offences. Mella was charged with two counts of supplying cocaine on an ongoing basis, one count of offering to supply a commercial quantity of cocaine, and one count of supplying a prohibited drug. The case was heard in the relevant court, where Mella entered pleas of guilty to all charges. The court was tasked with determining an appropriate sentence for the respondent, taking into consideration the nature of the offences and the circumstances surrounding them.

The primary legal issues the court needed to address were the appropriate weight to give to the various offences, the factors that should be considered in determining the sentence, and the extent to which the onerous conditions of bail should be taken into account. The court was required to balance the seriousness of the offences, the respondent's criminal history, and the impact of the offences on the community, against any mitigating factors, such as the respondent's early guilty plea and the duration of the bail conditions.

In determining the sentence, the court considered the gravity of the offences, noting that they involved significant quantities of drugs and an ongoing supply. The court also acknowledged the onerous bail conditions that the respondent had endured for over two years, which it considered as a mitigating factor. After weighing these factors, the court decided on an aggregate sentence of six years, with a non-parole period of three years and nine months. This sentence reflected the seriousness of the offences, the respondent's early guilty plea, and the significant period spent on bail.

The court's final orders were that the respondent be sentenced to an aggregate term of six years imprisonment, with a non-parole period of three years and nine months. This sentence was designed to reflect the gravity of the offences, while also taking into account the mitigating factors presented by the respondent.

Orders

Orders of the court

Aggregate sentence of 6 years, with a non-parole period of 3 years 9 months.

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

R v Mella [2017] NSWDC 193

Most Recent Citation

Mrkajic and Panic v Commissioner of Police [2020] QDC 132

Cases Citing This Decision

Mrkajic and Panic v Commissioner of Police [2020] QDC 132
Citation 1 (Para 10)

…e was “un-aggravated”. Mr Mrkajic also had very onerous bail conditions which was a matter which should be taken into account.[36] [36] Mella v R [2017] NSWDC 193 at [47].…

See all citing cases →

Cases Cited

R v Cartwright [2018] ACTSC 132
Citation 1 (Para 45)

…In Regina v Cartwright (1989) 17 NSWLR 243, Hunt and Badgery Parker JJ (as their Honours then were) said this at 258F:…
EF v R [2015] NSWCCA 36
Citation 2 (Para 30)

…drugs and whether such activities may be described as trafficking are matters for evaluation in each separate case. However, recently, in EF v Regina [2015] NSWCCA 36 it was pointed that an intensive corrections order could be imposed in a case which otherwise warranted fulltime custody where there had been actual…
Paxton v R [2011] NSWCCA 242
Citation 3 (Para 27)

…of what they did. In some cases it will be difficult for a court to determine the offender’s role for lack of evidence. That was pointed out in Paxton v Regina (2011) 219 A Crim R 104 at [35]. The term “principal” is often used to describe an offender’s role. Simpson J in Nguyen v Regina (2011) 208 A Crim R 432 in the co…
R v Jajou [2009] NSWCCA 167
Citation 4 (Para 47)

…The matter was again discussed by the Court of Criminal Appeal in Regina v Jajou [2009] NSWCCA 167; (2009) 196 A Crim R 370 between [46] and [48] but I shall not lengthen these reasons any further by setting that out at length. However it was there accepted that the continuance of onerous bail conditions was a groun…
R v Gao [2007] NSWCCA 343
Citation 5 (Para 9)

…ay into the community and the fact that they did not do so was not due to the offender. The same applies in the current case. In Regina v Gao [2007] NSWCCA 343 the Court of Criminal Appeal emphasised that it is not a matter of principle that supplying drugs to undercover operatives always involves a diminution of cu…
Mirza v R [2007] NSWCCA 248
Citation 6 (Para 10)

…ole in the supply of drugs. Mr Brady SC who appeared for the offender referred me to the decision of the Court of Criminal Appeal in Mirza v Regina [2007] NSWCCA 248. The facts are set out in para [4] and [5] of that judgment:…
Nguyen v Regina [2007] NSWCCA 226
Citation 7 (Para 27)

…d out in Paxton v Regina (2011) 219 A Crim R 104 at [35]. The term “principal” is often used to describe an offender’s role. Simpson J in Nguyen v Regina (2011) 208 A Crim R 432 in the context of an offence of cultivating a large commercial quantity of cannabis said this about who might be a principal:…
McKibben v R [2007] NSWCCA 89
Citation 8

…986 Drug Misuse and Trafficking Act 1985 Cases Cited: Botero (unreported, NSWCCA, 24 June 1998) EF v Regina [2015] NSWCCA 36 McKibben v R [2007] NSWCCA 89 Mirza v R [2007] NSWCCA 248 Nguyen v Regina (2011) 208 A Crim R 432 Paxton v R (2011) 219 A Crim R 104 R v Cartwright (1989) 17 NSWLR 243 R v Chan [1999] NSWCCA…
Vu v R [2006] NSWCCA 188
Citation 9 (Para 26)

…“hierarchy of seriousness attaching to one or other of the activities that may constitute a supply.” Those are words used in Vu v Regina [2006] NSWCCA 188. Concluding at [87] in Vu v R , Hall J said this:…
R v MRN [2006] NSWCCA 155
Citation 10 (Para 20)

…nce. They take their place beside the number and quantities of the individual incidences of supply. The authority to that proposition is Regina v MRN [2006] NSWCCA 155 commencing at [142].…
Des Rosiers v R [2006] NSWCCA 16
Citation 11

…This was cited with approval in Regina v Des Rosiers (2006) 159 A Crim R 549 at [23].”…
R v Dang [2005] NSWCCA 430
Citation 12 (Para 8)

…longer any judicially constructed gradation of penalties based on perceived harm caused by different types of drugs. It was said in Regina v Dang [2005] NSWCCA 430 at [29] that the Court of Criminal Appeal:…
R v Giang [2005] NSWCCA 387
Citation 13 (Para 20)

…rected to repetition, system and organisation. That is the business operation of supplying prohibited drugs. That is what is stated in Regina v Giang [2005] NSWCCA 387 commencing at [18]. The objective criminality of any offence under s 25A is determined by reference to those features, not merely the number of insta…
R v Way [2004] NSWCCA 131
Citation 14 (Para 9)

…safety, an aggravating factor pursuant to s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 . That was one of the findings in R v Way (2004) 60 NSWLR 168 at [172]. In the current case the supply of all the drugs can be seen as having been committed without regard for the safety of the general public. Although…
R v Shi [2004] NSWCCA 135
Citation 15 (Para 28)

…However there are some countervailing considerations. In Regina v Shi [2004] NSWCCA 135 the then Chief Judge at Common Law, Wood J, with whom the then Chief Justice, Spigelman CJ agreed, as did Simpson J, one must give consideration to:…
R v Poon [2003] NSWCCA 42
Citation 16 (Para 8)

…hion. The Drug Act adopts a quantity based penalty regime in Schedule 1. It makes no other distinction between drug types. Since Regina v Naipoon (2003) 56 NSWLR 284, there is no longer any judicially constructed gradation of penalties based on perceived harm caused by different types of drugs. It was said in Regina v…
R v Hoon and Pouoa [2000] NSWCCA 137
Citation 17 (Para 20)

…se features, not merely the number of instances of supply nor the individual quantities supplied. The authority for that proposition is Regina v Hoon [2000] NSWCCA 137 at [16]. The quantity of the drug is not irrelevant, nor are repetition, system and organisation of greater importance. They take their place beside…
R v Khamas [1999] NSWCCA 436
Citation 18 (Para 46)

…This issue was revisited in Regina v Khamas [1999] NSWCCA 436; (1999) 108 A Crim R 499. In that case RS Hulme J said at [27]:…
R v Olbrich [1999] HCA 54
Citation 19 (Para 27)

…e steps taken to supply the drugs. As a general proposition one should refer to what fell from the High Court of Australia in The Queen v Olbrich (1999) 199 CLR 270 at [14]. General descriptions of the types of participation must not obscure the assessment of what they did. In some cases it will be difficult for a co…
R v Chan [1999] NSWCCA 103
Citation 20 (Para 9)

…disseminated into the community, “of itself this is usually unlikely to lead to other than a very minor diminution of culpability”: R v Chan [1999] NSWCCA 103 at [21]. In that case the offender believed that the drugs were likely to find their way into the community and the fact that they did not do so was not due…
The Queen v Olbrich [1999] HCA 5418
Citation 21 (Para 27)

…nvolvement was in the steps taken to supply the drugs. As a general proposition one should refer to what fell from the High Court of Australia in The Queen v Olbrich (1999) 199 CLR 270 at [14]. General descriptions of the types of participation must not obscure the assessment of what they did. In some cases it will be diffic…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 9)
Criminal Procedure Act 1986 (NSW)
1 mention
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention

Medium Neutral Citation:	R v Mella [2017] NSWDC 193
Hearing dates:	14, 15 June 2017
Date of orders:	15 June 2017
Decision date:	15 June 2017
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Aggregate sentence of 6 years, with a non-parole period of 3 years 9 months.
Catchwords:	CRIME – supplying of cocaine – two offences of supplying drugs on an ongoing basis, contrary to section 25A(1) – one offence of offering to supply a commercial quantity of the drug, contrary t section 25(2) – one offence of supplying a prohibited drug contrary to section 25(1) – pleas of guilty – discount for onerous bail conditions for over two years
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Botero (unreported, NSWCCA, 24 June 1998) EF v Regina [2015] NSWCCA 36 McKibben v R [2007] NSWCCA 89 Mirza v R [2007] NSWCCA 248 Nguyen v Regina (2011) 208 A Crim R 432 Paxton v R (2011) 219 A Crim R 104 R v Cartwright (1989) 17 NSWLR 243 R v Chan [1999] NSWCCA 103 R v Dang [2005] NSWCCA 430 R v Des Rosiers (2006) 159 A Crim R 549 R v Gao [2007] NSWCCA 343 R v Giang [2005] NSWCCA 387 R v Hoon [2000] NSWCCA 137 R v Jajou [2009] NSWCCA 167: (2009) 196 A Crim R 370 R v Khamas [1999] NSWCCA 436; (1999) 108 A Crim R 499 R v MRN [2006] NSWCCA 155 R v Naipoon (2003) 56 NSWLR 284 R v Shi [2004] NSWCCA 135 R v Way (2004) 60 NSWLR 168 The Queen v Olbrich (1999) 199 CLR 270 Vu v R [2006] NSWCCA 188
Category:	Sentence
Parties:	Regina (Crown) Robert Aldo Mella (Offender)
Representation:	Counsel: S Stuart (Crown) G Brady SC (Offender) Solicitors: Solicitors for the ODPP (Crown) Barraket Stanton Lawyers (Offender)
File Number(s):	2015/115322
Publication restriction:	Nil