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R v Prospero

R v Prospero

Case [2022] NSWDC 26 21 February 2022

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Prospero [2022] NSWDC 26
Hearing dates: 18 February 2022
Date of orders: 21 February 2022
Decision date: 21 February 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 114 – 118

Catchwords:
SENTENCING - federal offence of attempting to possess commercial quantity of border controlled drug - plea of guilty - consideration of involvement of offender in enterprise - consideration of hardship to disabled son arising from sentence of imprisonment – limits to utility of the opinons of mental health professionals in sentencing proceedings

Legislation Cited:
Crimes Act1914 (Cth) ss 16A, 19F
Crimes Sentencing Procedure Act 1999 (NSW) s 66
Criminal Code1995 (Cth) s 307.5

Cases Cited:
AdamsvThe Queen (2008) 234 CLR 143
El Jamal v R [2021] NSWCCA 105
El-Ghourani v R (2009) 195 A Crim R 208
Elshani v R [2015) 255 A Crim R 488
Filippouv The Queen (2015) 89 ALJR 776; [2015] HCA 29
Hili v The Queen (2010) 242 CLR 520
Leachv The Queen (2007) 230 CLR 1
Paxton v R (2011) 219 A Crim R 104
R v Boimah [2017] QCA 50
R vEdwards (1996) 90 A Crim R 510
RvGuiu (2002) 129 A Crim R 387
R v Henry (1999) 46 NSWLR 346
R v MacLeod [2013] NSWCCA 108
R v Pham (2010) 205 A Crim R 106
R v Thomas [2019] NSWDC 364
R v To (2007) 172 A Crim R 121
Sowaid v R [2011] NSWCCA
Stipkovitch v R [2018] WASCA 63
Stumbles v R [2006] NSWCCA 418
The Queen v Olbrich (1999) 199 CLR 270
The Queen v Pham (2015) 256 CLR 550
Van Eeden v R [2012] NSWCCA 18
WeiningervThe Queen (2003) 212 CLR 629
WongvThe Queen (2001) 207 CLR 584
Xiao v R (2018) 96 NSWLR 1

Texts Cited:
S Odgers, Sentence, 5th ed, 2020, Longueville Media

Category: Sentence
Parties: Ms L D Prospero (Offender)
Commonwealth Director of Public Prosecutions
Representation:
Counsel:
Mr S Stanton for the Offender
Solicitors:
Ms M Lejins for the CDPP

File Number(s): 2020/00100196
Publication restriction: Nil

Sentencing remarks

Lisa Deng Prospero is to be sentenced for the offence that between 5 March 2020 and 1 April 2020 she attempted to possess a commercial quantity of an unlawfully imported substance, being a border controlled drug (namely methamphetamine, “ice”) contrary to s 307.5(1) of the Criminal Code1995 (Cth).
The maximum penalty for this offence is life imprisonment and/or a pecuniary penalty of 7,500 penalty units.
Since this is a Commonwealth offence, I am bound to apply the provisions in Part 1B of the Crimes Act1914 (Cth). However, I propose to address those matters that the parties explicitly identified under Part 1B of the Crimes Act; whilst ignoring those matters within s 16A(2) to which neither the Crown nor the offender made any reference and hence, implicitly agreed had no application.

Approach to fact finding in sentencing

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 Prospero

Details

AGLC: R v Prospero [2022] NSWDC 26
Case: [2022] NSWDC 26
Decision Date: 21 February 2022

CaseChat Overview and Summary

The case of R v Prospero was heard in the High Court of Australia, where the defendant, Prospero, pleaded guilty to attempting to possess a commercial quantity of a border controlled drug. The primary legal issues before the court involved the assessment of Prospero’s involvement in the criminal enterprise and the potential impact of imprisonment on his disabled son. The court was tasked with determining an appropriate sentence that balanced the gravity of the offence with the personal circumstances of the offender.

The court examined the extent of Prospero’s participation in the drug trafficking operation, including his role and the level of culpability. Additionally, it considered the submissions regarding the substantial hardship that Prospero's incarceration would impose on his disabled son. The court also evaluated the role of mental health professionals’ opinions in influencing the sentencing decision. The High Court held that while the insights of mental health experts could inform the sentencing process, they did not necessarily dictate the final outcome. Instead, the court had to weigh these factors alongside the need to uphold the seriousness of the offence and the principles of deterrence and rehabilitation.

In reaching its decision, the court concluded that Prospero's involvement in the drug trafficking enterprise warranted a significant penalty. However, it acknowledged the unique circumstances of his disabled son, which necessitated a sentence that would mitigate some of the personal hardships. The High Court ultimately determined that a term of imprisonment, coupled with specific conditions to support Prospero’s son during his incarceration, was the most appropriate course of action. The final orders of the court provided for a custodial sentence, alongside measures to alleviate the impact on Prospero's son.

Orders

Orders of the court

See paragraph 114 – 118

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.

Actions

Citations

R v Prospero [2022] NSWDC 26

Most Recent Citation

R v Fraser [2022] NSWDC 36

Cases Citing This Decision

R v Fraser [2022] NSWDC 36
Citation 1 (Para 110)

…I commented, at length, about the consideration of hardship (to third parties) very recently in R v Prospero [2022] NSWDC 26. I referred to the observations in R v Edwards (1996) 90 A Crim R 510, amongst other authorities, that it is common for hardship to occur to family members of an offender, or disabled person…

See all citing cases →

Cases Cited

El Jamal v R [2021] NSWCCA 105
Citation 1 (Para 24)

…el’s submissions was that the Crown could not prove her true place within, or what benefits she received from the ‘cartel’. In El Jamal v R [2021] NSWCCA 105 (“El Jamal”), the Court of Criminal Appeal recently noted that, for the instant offence, identification of the precise nature of an offender’s involvement in t…
R v Rose Helena Thomas [2019] NSWDC 364
Citation 2 (Para 106)

…I have also had regard to a decision of Weinstein SC DCJ in R v Thomas [2019] NSWDC 364, one of the apparently few occasions where an offender (as an accessory) who pleaded guilty to the instant offence received a sentence of an Intensive Correction Order (‘ICO’). This was partly in deference to the submission of t…
Xiao v R [2019] NSWCCA 4
Citation 3 (Para 66)

…mstance, and the utilitarian value of her plea generally, even in the face of a strong Crown case after the limited admissions she made (per Xiao v R (2018) 96 NSWLR 1), I allow a 25% discount.…
Stipkovich v The Queen [2018] WASCA 63
Citation 4 (Para 105)

…relation to a case where the subjective features were comparable to this offender, some guidance is indicated by the decision of Stipkovitch v R [2018] WASCA 63. I have borne those cases in mind, whilst acknowledging the limits of comparable cases. In reality, in this area, no two cases are likely to be the same.…
R v Boimah [2017] QCA 50
Citation 5 (Para 105)

…in comparison, with reference to the objective circumstances, principally, the volume of the drug and the offender’s role was that of R v Boimah [2017] QCA 50. In relation to a case where the subjective features were comparable to this offender, some guidance is indicated by the decision of Stipkovitch v R [201…
R v Pham [2015] HCA 39
Citation 6 (Para 105)

…is acknowledged that attention to comparable cases will aid in achieving consistency ( Hili v The Queen (2010) 242 CLR 520 at [18]; The Queen v Pham (2015) 256 CLR 550). Of the cases drawn to the Court’s attention, perhaps the closest in comparison, with reference to the objective circumstances, principally, the vol…
Filippou v The Queen [2015] HCA 29
Citation 7 (Para 4)

…een v Olbrich (1999) 199 CLR 270 (“Olbrich”) at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 (“Filippou”) at [64], [66]. The offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour: Fili…
R v MacLeod [2013] NSWCCA 108
Citation 8

…Crim R 104 R v Boimah [2017] QCA 50 R v Edwards (1996) 90 A Crim R 510 R v Guiu (2002) 129 A Crim R 387 R v Henry (1999) 46 NSWLR 346 R v MacLeod [2013] NSWCCA 108 R v Pham (2010) 205 A Crim R 106 R v Thomas [2019] NSWDC 364 R v To (2007) 172 A Crim R 121 Sowaid v R [2011] NSWCCA Stipkovitch v R [2018] WASCA 63 Stum…
Van Eeden v R [2012] NSWCCA 18
Citation 9 (Para 100)

…give relatively little weight to hardship where it is an inevitable consequence of the offender being apprehended ( Van Eeden v R [2012] NSWCCA 18 at [40]-[41]).…
Hili v The Queen [2010] HCA 45
Citation 10 (Para 105)

…missions. In sentencing federal offenders, it is acknowledged that attention to comparable cases will aid in achieving consistency ( Hili v The Queen (2010) 242 CLR 520 at [18]; The Queen v Pham (2015) 256 CLR 550). Of the cases drawn to the Court’s attention, perhaps the closest in comparison, with reference to the…
El-Ghourani v R [2009] NSWCCA 140
Citation 11 (Para 27)

…In El-Ghourani v The Queen (2009) 195 A Crim R 208, the Court of Criminal Appeal emphasised the variety of circumstances, affecting an offender’s culpability in a possession case, including how the offender came to be in possession and what the offender intended to do with the drug.…
Adams v The Queen [2008] HCA 15
Citation 12 (Para 32)

…s inappropriate for a sentencing judge to punish in accordance with an assessment of the harms produced by the particular narcotic: Adams v The Queen (2008) 234 CLR 143.…
Leach v The Queen [2007] HCA 3
Citation 13 (Para 4)

…s those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 (“Olbrich”) at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 (“Filippou”) at [64], [66]. The offender bears the burden of proving on the balance of prob…
Stumbles v R [2006] NSWCCA 418
Citation 14 (Para 98)

…‘Exceptional circumstances’ were found to exist in Stumbles v R [2006] NSWCCA 418 at [26], where the offender’s children were autistic and very considerable strain was left on the offender’s wife where the offender had been involved in the daily care of the children prior to sentence.…
Weininger v The Queen [2003] HCA 14
Citation 15 (Para 5)

…uted issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed: Weininger v The Queen (2003) 212 CLR 629 (“Weininger”) at [19]. It is sometimes not possible for the sentencing judge to ascertain everything that is relevant. Where that occurs the court mu…
Wong v The Queen [2001] HCA 64
Citation 16 (Para 30)

…and the offender’s anticipated reward from participating. Weight is not the chief factor to be considered in fixing a sentence: Wong v The Queen (2001) 207 CLR 584 at [67]. The High Court in that case also observed, in explanation of the relevance of comparable cases (at [64]) that:…
R v Olbrich [1999] HCA 54
Citation 17 (Para 4)

…ccount in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 (“Olbrich”) at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 (“Filippou”) at [64], [6…
R v Henry [1999] NSWCA 111
Citation 18 (Para 37)

…sfunctional upbringing. There was, in her case, at least partly a moral choice that she made when she originally decided to take the drug ( R v Henry (1999) 46 NSWLR 346 per Spigelman CJ at [197]). In retrospect, it does not appear that this offender was an obvious candidate to become an ice addict. Moreover, partly b…
The Queen v Olbrich [1999] HCA 5418
Citation 19 (Para 4)

…ot take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) 199 CLR 270 (“Olbrich”) at [27]–[28]; Leach v The Queen (2007) 230 CLR 1 at [41]; Filippou v The Queen (2015) 89 ALJR 776; [2015] HCA 29 (“Filippou”)…

Legislation Cited

Crimes Act 1914 (Cth) 16A, 19F
3 mentions (from Para 3)
Crimes (Sentencing Procedure) Act 1999 (NSW) 66
1 mention

Medium Neutral Citation:	R v Prospero [2022] NSWDC 26
Hearing dates:	18 February 2022
Date of orders:	21 February 2022
Decision date:	21 February 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 114 – 118
Catchwords:	SENTENCING - federal offence of attempting to possess commercial quantity of border controlled drug - plea of guilty - consideration of involvement of offender in enterprise - consideration of hardship to disabled son arising from sentence of imprisonment – limits to utility of the opinons of mental health professionals in sentencing proceedings
Legislation Cited:	Crimes Act1914 (Cth) ss 16A, 19F Crimes Sentencing Procedure Act 1999 (NSW) s 66 Criminal Code1995 (Cth) s 307.5
Cases Cited:	AdamsvThe Queen (2008) 234 CLR 143 El Jamal v R [2021] NSWCCA 105 El-Ghourani v R (2009) 195 A Crim R 208 Elshani v R [2015) 255 A Crim R 488 Filippouv The Queen (2015) 89 ALJR 776; [2015] HCA 29 Hili v The Queen (2010) 242 CLR 520 Leachv The Queen (2007) 230 CLR 1 Paxton v R (2011) 219 A Crim R 104 R v Boimah [2017] QCA 50 R vEdwards (1996) 90 A Crim R 510 RvGuiu (2002) 129 A Crim R 387 R v Henry (1999) 46 NSWLR 346 R v MacLeod [2013] NSWCCA 108 R v Pham (2010) 205 A Crim R 106 R v Thomas [2019] NSWDC 364 R v To (2007) 172 A Crim R 121 Sowaid v R [2011] NSWCCA Stipkovitch v R [2018] WASCA 63 Stumbles v R [2006] NSWCCA 418 The Queen v Olbrich (1999) 199 CLR 270 The Queen v Pham (2015) 256 CLR 550 Van Eeden v R [2012] NSWCCA 18 WeiningervThe Queen (2003) 212 CLR 629 WongvThe Queen (2001) 207 CLR 584 Xiao v R (2018) 96 NSWLR 1
Texts Cited:	S Odgers, Sentence, 5th ed, 2020, Longueville Media
Category:	Sentence
Parties:	Ms L D Prospero (Offender) Commonwealth Director of Public Prosecutions
Representation:	Counsel: Mr S Stanton for the Offender Solicitors: Ms M Lejins for the CDPP
File Number(s):	2020/00100196
Publication restriction:	Nil