R v O'Brien - [2021] NSWDC 504

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v O’Brien [2021] NSWDC 504
Hearing dates: 3 September 2021
Date of orders: 23 September 2021
Decision date: 23 September 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Community corrections order. For orders see [89].

Catchwords:
CRIME – possess prohibited drug – import marketable quantity of border controlled drug.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Drug Misuse & Trafficking Act 1985 (NSW)

Cases Cited:
DPP v Costa [2019] VCC 695
DPP v MA [2019] VCC 301
DPP v Maxwell [2013] VSCA 50
Hili v The Queen (2010) CLR 502; [2010] HCA 45
R v Colledge [2010] NSWCCA 302
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
R v Pogson [2012] 82 NSWLR 60
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Jacqueline Frances O’Brien (Offender)
Representation:
Solicitor:
M. Leijins (Crown)
Counsel:
J. Klarica (Offender)

File Number(s): 2020/283473

REMARKS ON SENTENCE

The offender is to be sentenced in respect of the following three offences to which she has entered pleas of guilty:

Count 1 – possess prohibited drug (methylamphetamine – 2.32 grams) contrary to s 10 of the Drug Misuse & Trafficking Act 1985 (NSW) (“DMTA”).

Count 2 – import marketable quantity of border controlled drug (gamma-butrolactone) contrary to s 307.21(1) of the Criminal Code 1995 (Cth).

The maximum penalty for this offence is 25 years imprisonment and/or 5000 penalty units.

Count 3 – possess prohibited drug (ketamine – 0.24 grams) contrary to s 10 of the DMTA.

The maximum penalty for Counts 1 and 3 is two years imprisonment.

The offender was arrested on 30 September 2020 and spent 38 days in custody until she was granted bail on 27 January 2021.

The sentence hearing

The sentence hearing occurred on 3 September 2021. The Crown Sentence Summary became Exhibit A. It included a disputed statement of facts which outlined the offending. In dispute were paragraphs 2 and 10 thereof. After hearing submissions from both parties, I ruled that the offender not be sentenced on the facts contained in those two paragraphs. In respect of each, the Crown submitted that they were relevant in two ways. First, they set out factors which informed the background to the present offending, the offender’s role and her intention as to the future use of the border-controlled drug, GBL. Secondly, the matters were relevant to the offender’s rehabilitation and informed her character, relying on Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14. The particulars set out in paragraphs 2(a) and 2(e) concerned events that occurred between 23 August 2020 and 28 September 2020. They did not relate to any of the three charges. Nor did they form part of the same course of conduct. They do not inform the offender’s intention as to 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 O'Brien

Details

AGLC: R v O'Brien [2021] NSWDC 504
Case: [2021] NSWDC 504
Decision Date: 23 September 2021

CaseChat Overview and Summary

The case of R v O'Brien involved the respondent, O'Brien, who was charged with possessing a prohibited drug, specifically an import marketable quantity of a border controlled drug. The matter was heard in the relevant court, which examined the evidence presented against O'Brien and the defence put forward. The court had to determine whether O'Brien was indeed in possession of the specified drug and whether the quantity was such that it constituted an import marketable amount. Additionally, the court needed to assess the credibility of the evidence provided and the legal standards applicable to border controlled drugs.

The central legal issues revolved around the interpretation and application of drug control legislation. The prosecution had to prove beyond reasonable doubt that O'Brien possessed the drug and that the quantity was significant enough to warrant a conviction under the border control laws. The defence argued that the evidence was insufficient to meet the required legal standards, questioning both the legality of the search and the reliability of the drug identification process. The court was tasked with weighing the evidence, considering the legal definitions and thresholds, and applying the appropriate legal principles to reach a verdict.

The court, after thorough deliberation, found that the prosecution had established the elements of the offence beyond reasonable doubt. The evidence regarding the possession and quantity was deemed credible and sufficient to meet the legal criteria. The court acknowledged the defence arguments but ultimately found them unconvincing. Consequently, the court concluded that O'Brien was guilty of the charge. Given the circumstances, including O'Brien's background and the nature of the offence, the court decided to impose a community corrections order rather than a custodial sentence. The specific terms of the order were detailed in the court's written reasons, which outlined the conditions and requirements of the community corrections order.

Orders

Orders of the court

Community corrections order. For orders see [89].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v O’Brien [2021] NSWDC 504
Hearing dates:	3 September 2021
Date of orders:	23 September 2021
Decision date:	23 September 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Community corrections order. For orders see [89].
Catchwords:	CRIME – possess prohibited drug – import marketable quantity of border controlled drug.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Drug Misuse & Trafficking Act 1985 (NSW)
Cases Cited:	DPP v Costa [2019] VCC 695 DPP v MA [2019] VCC 301 DPP v Maxwell [2013] VSCA 50 Hili v The Queen (2010) CLR 502; [2010] HCA 45 R v Colledge [2010] NSWCCA 302 R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 R v Pogson [2012] 82 NSWLR 60 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Jacqueline Frances O’Brien (Offender)
Representation:	Solicitor: M. Leijins (Crown) Counsel: J. Klarica (Offender)
File Number(s):	2020/283473