R v Newport, John Robert - [2020] NSWDC 245

District Court

New South Wales

Medium Neutral Citation: R v Newport, John Robert [2020] NSWDC 245
Hearing dates: 24 April 2020
Date of orders: 08 May 2020
Decision date: 08 May 2020
Jurisdiction: Criminal
Before: Yehia SC DCJ
Decision:
The offender is convicted.
Taking into account a discount of 5%, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 4 months and 14 days imprisonment, commencing on 25 December 2018 and expiring on 8 May 2020, with a balance of term of 3 years 1 month and 16 days imprisonment, expiring on 24 June 2023. The total term is 4 years 6 months imprisonment. The starting point before the application of the 5% reduction in sentence is 4 years 9 months imprisonment.
The offender is eligible for consideration for release on parole at the expiration of the non-parole period, subject to the guidance and supervision of Community Corrections for as long as they deem necessary.
Catchwords: SENTENCING – supplying a prohibited drug on an ongoing basis – allowance to be made for time spent in residential rehabilitation – exceptional rehabilitation warranting an exceptional variation of the statutory ratio between the non-parole period and head sentence
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 25A
Cases Cited: Brown v R [2013] NSWCCA 44
Kennedy v R [2020] NSWCCA 49
R v Blackman and Walters [2001] NSWCCA 121
R v Hoon; R v Pouoa [2000] NSWCCA 137
R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep)
R v Osenkowski (1982) 5 A Crim R 394
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [124]
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
Category: Sentence
Parties: Commonwealth Director of Public Prosecutions
John Robert Newport
Representation: N Leach (CDPP)
J O’Sullivan (Offender)

File Number(s): 2018/00199148

Judgment

John Robert Newport, the offender, comes before me to be sentenced in respect of one offence of supplying a prohibited drug on an ongoing basis. The amount of drug supplied was 305.2 grams of methylamphetamine. The period over which the supply took place was from 14 May 2018 to 7 June 2018, involving three separate transactions between a co-offender and an undercover operative.
The offence is contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of 20 years imprisonment. The offence does not attract a standard non-parole period.
The offender pleaded not guilty and was committed for trial. The trial was listed to commence on 25 November 2019. The offender pleaded guilty on the first day of trial. It was a late plea of guilty. It is accepted on the offender’s behalf that an appropriate reduction in sentence is one of 5%.

Facts

An offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) refers to an offence of supplying prohibited drug on an ongoing basis. The reference to an “ongoing basis” is to the element…

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 Newport, John Robert

Details

AGLC: R v Newport, John Robert [2020] NSWDC 245
Case: [2020] NSWDC 245
Decision Date: 08 May 2020

CaseChat Overview and Summary

The matter before the court was a conviction of John Robert Newport for supplying a prohibited drug on an ongoing basis. The case reached the sentencing phase where the court was tasked with determining an appropriate sentence, taking into account the nature and circumstances of the offence, as well as the offender's background and prospects for rehabilitation. The court had to consider the statutory provisions and sentencing principles relevant to the offence, including the principle of proportionality and the objective of deterrence, while also allowing for any mitigating factors that might warrant a variation from the usual sentencing ratio.

The primary legal issue before the court was the appropriate sentence for Mr. Newport, with a particular focus on whether his substantial rehabilitation efforts, including time spent in residential rehabilitation, warranted a departure from the usual sentencing ratio between the non-parole period and the head sentence. The court had to balance the need for punishment and deterrence with the principles of rehabilitation and proportionality, considering both the statutory framework and the particular circumstances of the offender. The court also had to determine the appropriate length of the non-parole period and the balance of the term, ensuring that the sentence was both just and proportionate to the offence.

In delivering the sentence, the court recognised the significant efforts Mr. Newport had made towards rehabilitation, including his participation in a residential rehabilitation program. The court acknowledged that such exceptional rehabilitation could warrant an exceptional variation of the statutory ratio. After considering the nature and circumstances of the offence, the offender's background, and the principles of sentencing, the court imposed a sentence of imprisonment with a non-parole period of 1 year 4 months and 14 days, followed by a balance of term of 3 years 1 month and 16 days. The total term of imprisonment was set at 4 years 6 months, with a starting point before the discount of 5% being 4 years 9 months. The offender was also made eligible for parole at the end of the non-parole period, subject to the conditions set by Community Corrections.

The final orders of the court were that Mr. Newport was convicted, and his sentence was set as outlined above. The court also specified that the offender would be eligible for parole consideration at the end of the non-parole period, with the condition that he remain under the guidance and supervision of Community Corrections for as long as deemed necessary.

Orders

Orders of the court

The offender is convicted.

Taking into account a discount of 5%, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 4 months and 14 days imprisonment, commencing on 25 December 2018 and expiring on 8 May 2020, with a balance of term of 3 years 1 month and 16 days imprisonment, expiring on 24 June 2023. The total term is 4 years 6 months imprisonment. The starting point before the application of the 5% reduction in sentence is 4 years 9 months imprisonment.

The offender is eligible for consideration for release on parole at the expiration of the non-parole period, subject to the guidance and supervision of Community Corrections for as long as they deem necessary.

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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Medium Neutral Citation:	R v Newport, John Robert [2020] NSWDC 245
Hearing dates:	24 April 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	The offender is convicted. Taking into account a discount of 5%, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 4 months and 14 days imprisonment, commencing on 25 December 2018 and expiring on 8 May 2020, with a balance of term of 3 years 1 month and 16 days imprisonment, expiring on 24 June 2023. The total term is 4 years 6 months imprisonment. The starting point before the application of the 5% reduction in sentence is 4 years 9 months imprisonment. The offender is eligible for consideration for release on parole at the expiration of the non-parole period, subject to the guidance and supervision of Community Corrections for as long as they deem necessary.
Catchwords:	SENTENCING – supplying a prohibited drug on an ongoing basis – allowance to be made for time spent in residential rehabilitation – exceptional rehabilitation warranting an exceptional variation of the statutory ratio between the non-parole period and head sentence
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s 25A
Cases Cited:	Brown v R [2013] NSWCCA 44 Kennedy v R [2020] NSWCCA 49 R v Blackman and Walters [2001] NSWCCA 121 R v Hoon; R v Pouoa [2000] NSWCCA 137 R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep) R v Osenkowski (1982) 5 A Crim R 394 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [124] Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions John Robert Newport
Representation:	N Leach (CDPP) J O’Sullivan (Offender)
File Number(s):	2018/00199148