R v Rafferty - [2019] NSWDC 780

District Court

New South Wales

Medium Neutral Citation: R v Rafferty [2019] NSWDC 780
Hearing dates: 22 November 2019
Date of orders: 22 November 2019
Decision date: 22 November 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of four years, with a non-parole period of two years and nine months: at [31].

Catchwords: SENTENCING — Aggravating factors — Breach of conditional liberty — Financial gain — Planned or organised criminal activity
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Multiple offences — Accumulation, concurrency and totality
SENTENCING — Subjective considerations on sentence — Special circumstances — Drug addiction
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Poisons and Therapeutic Goods Act 1966
Cases Cited: Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Imbornone v R [2017] NSWCCA 144
R v Parente [2017] NSWCCA 192
R v Qutami (2001) 127 A Crim R 396
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Nathan Rafferty (Offender)
Representation:
Ms A Wheeler (Solicitor for the Crown)
Mr M Coroneos (Counsel for the Offender)

File Number(s): 2019/42852

Judgment

This is a case that graphically illustrates what happens when offenders breach the conditions of an Intensive Corrections Order (ICO), which frequently involves immediate incarceration for the full term of imprisonment. In December 2018, Sutherland DCJ sentenced this offender to three years imprisonment to be served by way of an Intensive Corrections Order, for a number of offences. First, supplying 11 grams of cocaine, secondly, supplying almost 11 grams of MDMA or ecstasy and thirdly, that he possessed $24,510 in cash reasonably suspected of being the proceeds of crime. The aggregate sentence commenced on 13 December 2018 and would have expired on 12 December 2021. The maximum penalties for the two drug supply offences dealt with were 15 years with no standard non-parole period.
However Nathan Rafferty, aged 31, foolishly chose to breach the terms that ICO, which had left him at liberty in the community. On 7 February 2019 he was arrested for much more serious drug supply offences, that lead to him appearing for sentence today for, a count of supply in excess of a commercial quantity of cocaine, namely 467 grams of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act1985, which carries a maximum penalty of 20 years and a standard non-parole period of ten years imprisonment. To be taken into account on a Form 1 in the way suggested by the Chief Justice in the guideline judgment (Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146) is a count of having property suspected of being stolen namely an Australian Disability Parking Permit, possessing Oxycodone, contrary to s 16(1) of the Poisons and Therapeutic…

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 Rafferty

Details

AGLC: R v Rafferty [2019] NSWDC 780
Case: [2019] NSWDC 780
Decision Date: 22 November 2019

CaseChat Overview and Summary

The case of R v Rafferty involved the respondent, Rafferty, who was before the court for sentencing following a conviction for a series of offences. The respondent had breached conditions of his release and engaged in criminal activities aimed at financial gain. The matter was heard in a court of appropriate jurisdiction, which had to determine the appropriate penalty and sentencing factors to apply in this instance.

The court was tasked with identifying and weighing both aggravating and mitigating factors pertinent to the sentencing process. Among the aggravating factors, the court considered the respondent's breach of conditional liberty and involvement in planned criminal activities. Conversely, mitigating factors included the respondent's early guilty plea, expressions of remorse, prospects for rehabilitation, and his low likelihood of re-offending. Additionally, the court had to consider the respondent's drug addiction as a special circumstance impacting the sentencing.

In determining the sentence, the court carefully assessed the totality of the circumstances, including the nature of the offences, the respondent's criminal history, and the principles of deterrence and general deterrence. The court concluded that an aggregate term of imprisonment was necessary, with a non-parole period to ensure public safety while allowing for the possibility of rehabilitation. The final order was an aggregate term of imprisonment of four years, with a non-parole period of two years and nine months.

Orders

Orders of the court

An aggregate term of imprisonment of four years, with a non-parole period of two years and nine months: at [31].

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 Rafferty [2019] NSWDC 780
Hearing dates:	22 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of four years, with a non-parole period of two years and nine months: at [31].
Catchwords:	SENTENCING — Aggravating factors — Breach of conditional liberty — Financial gain — Planned or organised criminal activity SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Multiple offences — Accumulation, concurrency and totality SENTENCING — Subjective considerations on sentence — Special circumstances — Drug addiction
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Poisons and Therapeutic Goods Act 1966
Cases Cited:	Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Imbornone v R [2017] NSWCCA 144 R v Parente [2017] NSWCCA 192 R v Qutami (2001) 127 A Crim R 396
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Nathan Rafferty (Offender)
Representation:	Ms A Wheeler (Solicitor for the Crown) Mr M Coroneos (Counsel for the Offender)
File Number(s):	2019/42852