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R v Rispen

R v Rispen

Case [2018] NSWDC 403 14 December 2018

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rispen [2018] NSWDC 403
Hearing dates: 01 November 2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
(1) The Offender is convicted
(2) Taking into account the pleas of guilty (15%) and the Forms 1 where applicable, the indicative terms of the sentence are:
• Sequence 35 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months
• Sequence 36 (taking into account the Form 1C matters) – 9 years imprisonment with a non-parole period of 6 years
• Sequence 37 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months
• Sequence 38 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months
• Sequence 39 (taking into account the Form 1A matters) – 10 years imprisonment with a non-parole period of 6 years and 8 months
• Sequence 41 (taking into account the Form 1B matters) – 4 years and 6 months imprisonment with a non-parole period of 3 years.

(3) The aggregate sentence will be 15 years to date from 21 May 2017 and to expire on 20 May 2032 with a non-parole period of 10 years to date from 21 May 2017 and to expire on 20 May 2027. The Offender shall be eligible for release at the conclusion of the non-parole period subject to a decision of the State Parole Authority with the Offender’s earliest release date being 20 May 2027.
(4) The earliest release date is 20 May 2027
Catchwords: SENTENCING – Supply of large commercial quantity of methylamphetamine contrary to Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) – Multiple Form 1 Offences – Plea of guilty - Offender absconded for more than two years in breach of conditional bail – Utilitarian value of the plea - Question of remorse
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Alvares v R (2011) 209 A Crim R 297
Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 137
Collier v R [2012] NSWCCA 213
Imbornone v The Queen [2017] NSWCCA 144
Markarian v R (2005) 228 CLR 357
Melikian v R [2008] NSWCCA 156
Mun v R [2015] NSWCCA 234
R v Harris [2001] NSWCCA 322
R v Johnson [2005] NSWCCA 80
R v MacDonnell (2002) 128 A Crim R 44
R v Thomson; R v Houlton (2000) 8 NSWLR 383
R v Trad [2003] NSWCCA 213
Samuel v R [2017] NSWCCA 239
Wat v R [2017] NSWCCA 62
Wu v R [2018] NSWCCA 74
Texts Cited: N/A
Category: Sentence
Parties: Regina (Crown)
Darren Rispen (Offender)
Representation:
Counsel:

Ms G Bashir SC (Offender)
Mr M Coroneos (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Birchgrove Legal (Offender)

File Number(s):

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 Rispen

Details

AGLC: R v Rispen [2018] NSWDC 403
Case: [2018] NSWDC 403
Decision Date: 14 December 2018

CaseChat Overview and Summary

The defendant, in this case, was charged with multiple counts of supplying large commercial quantities of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The defendant absconded for more than two years in breach of conditional bail and the case came before the Supreme Court of New South Wales. The defendant entered pleas of guilty to all charges. The primary legal issues that the court had to decide related to the sentencing of the defendant, taking into account the pleas of guilty and the applicable Forms 1. The court had to determine the appropriate aggregate sentence and non-parole period.

In determining the appropriate sentence, the court took into account the seriousness of the offences, the defendant's criminal history, and the circumstances of the case. The court found that the offences were of high seriousness, given the large quantities of drugs involved, and that the defendant had a significant criminal history. The court also found that the defendant had absconded in breach of conditional bail, which was a factor that weighed against him. However, the court acknowledged the defendant's pleas of guilty and the Forms 1, which reduced the indicative terms of the sentence. The court also considered the defendant's remorse and the utilitarian value of his pleas of guilty. Ultimately, the court determined that the appropriate aggregate sentence was 15 years imprisonment, with a non-parole period of 10 years. The defendant's earliest release date will be 20 May 2027.

The court's orders reflect the determination of the appropriate sentence for the defendant. The court convicted the defendant and ordered that the aggregate sentence be 15 years imprisonment, with a non-parole period of 10 years. The court also ordered that the defendant be eligible for release at the conclusion of the non-parole period, subject to a decision of the State Parole Authority. The court's orders ensure that the defendant is appropriately punished for his crimes and that the community is protected from further harm.

Orders

Orders of the court

(1) The Offender is convicted

(2) Taking into account the pleas of guilty (15%) and the Forms 1 where applicable, the indicative terms of the sentence are:

• Sequence 35 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months

• Sequence 36 (taking into account the Form 1C matters) – 9 years imprisonment with a non-parole period of 6 years

• Sequence 37 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months

• Sequence 38 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months

• Sequence 39 (taking into account the Form 1A matters) – 10 years imprisonment with a non-parole period of 6 years and 8 months

• Sequence 41 (taking into account the Form 1B matters) – 4 years and 6 months imprisonment with a non-parole period of 3 years.

(3) The aggregate sentence will be 15 years to date from 21 May 2017 and to expire on 20 May 2032 with a non-parole period of 10 years to date from 21 May 2017 and to expire on 20 May 2027. The Offender shall be eligible for release at the conclusion of the non-parole period subject to a decision of the State Parole Authority with the Offender’s earliest release date being 20 May 2027.

(4) The earliest release date is 20 May 2027

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 Rispen [2018] NSWDC 403

Cases Citing This Decision

No citing cases yet.

Cases Cited

Wu v The Queen [2018] NSWCCA 74
Citation 1 (Para 101)

…at the legislature has imposed. 32. See Collier v R [2012] NSWCCA 213, [40] (Per McClellan CJ at CL with whom RA Hulme and Schmidt JJ agreed); Wu v R [2018] NSWCCA 74, [46] (Per Davies J, with whom Hoeben CJ at CL and Fullerton J agreed).…
Samuel v The Queen [2017] NSWCCA 239
Citation 2

…cDonnell (2002) 128 A Crim R 44 R v Thomson; R v Houlton (2000) 8 NSWLR 383 R v Trad [2003] NSWCCA 213 Samuel v R [2017] NSWCCA 239 Wat v R [2017] NSWCCA 62 Wu v R [2018] NSWCCA 74 Texts Cited: N/A Category: Sentence Parties: Regina (Crown) Darren Rispen (Offender) Representation: Counsel: Ms G Bashir SC (Offender)…
Imbornone v R [2017] NSWCCA 144
Citation 3

…es (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 137 Collier v R [2012] NSWCCA 213 Imbornone v The Queen [2017] NSWCCA 144 Markarian v R (2005) 228 CLR 357 Melikian v R [2008] NSWCCA 156 Mun v R [2015] NSWCCA 234 R v Harris [2001] NSWCCA 322 R v Johnson [2005] NSWCCA 80 R v MacDonnell (2002) 128 A Crim R 44…
Van Zwam v R [2017] NSWCCA 127
Citation 4

…ence in an affidavit from an Offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on…
Wat v R [2017] NSWCCA 62
Citation 5 (Para 27)

…ese were a feature of the offences and “its only if it’s really much more significant that you would get it in such an offence.” [2] 2. Wat v R [2017] NSWCCA 62, [44] (Per Price J, with whom Bathurst CJ and Walton J agreed).…
Mun v R [2015] NSWCCA 234
Citation 6 (Para 68)

…ffender has interacted with. 21. Alvares v R (2011) 209 A Crim R 297, [44] (Per Buddin J, with whom McClellan CJ at CL and Schmidt J agreed); Mun v R [2015] NSWCCA 234, [37] (Per Gleeson JA with whom Adams and Beech-Jones JJ agreed).…
Barbaro v The Queen [2014] HCA 2
Citation 7 (Para 100)

…is respect, I have had regard to the principles in Hili v The Queen [30] and Barbaro v The Queen . [31] 30. (2010) 242 CLR 520, [18], [43], [53]. 31. (2014) 253 CLR 58, [40]-[41].…
Collier v R [2012] NSWCCA 213
Citation 8 (Para 101)

…ciety is reflected in the guidepost of the maximum penalties and the standard non-parole period that the legislature has imposed. 32. See Collier v R [2012] NSWCCA 213, [40] (Per McClellan CJ at CL with whom RA Hulme and Schmidt JJ agreed); Wu v R [2018] NSWCCA 74, [46] (Per Davies J, with whom Hoeben CJ at CL and F…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 9 (Para 83)

…y were discussed by the High Court in Green v R [26] and most recently summarised in King v R. [27] I have borne them in mind. 26. (2011) 244 CLR 462 [2011] HCA 49 (French CJ, Crennan and Kiefel JJ) see in particular [28]-[29]. 27. [2018] NSWCCA Johnson J (with whom Simpson AJA and RA Hulme J agreed) at [113]-11…
Pfitzner v R [2010] NSWCCA 314
Citation 10 (Para 33)

…express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. (4) If an Offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or oth…
Hili v The Queen [2010] HCA 45
Citation 11 (Para 100)

…tion Research System (JIRS) (MFI D). In this respect, I have had regard to the principles in Hili v The Queen [30] and Barbaro v The Queen . [31] 30. (2010) 242 CLR 520, [18], [43], [53]. 31. (2014) 253 CLR 58, [40]-[41].…
Butters v R [2010] NSWCCA 1
Citation 12 (Para 18)

…given to such statements to have regard to the fact that an Offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an Offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross…
Melikian v R [2008] NSWCCA 156
Citation 13 (Para 33)

…t the Offender’s role and level of criminality is more important in determining a sentence than the quantity of drugs involved. [4] 4. Melikian v R [2008] NSWCCA 156, [42] (Per Price J, with whom Spigelman CJ and Hidden J agreed); R v MacDonnell (2002) 128 A Crim R 44, [33] (Per Wood CJ at CL, with whom Sully and Do…
Munro v R [2006] NSWCCA 350
Citation 14 (Para 17)

…d to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]–[19]. (5) Whilst evidence in an affidavit from an Offender which is admitted into evidence without objection may be accepted by a sentencing judg…
Markarian v The Queen [2005] HCA 25
Citation 15 (Para 79)

…ded guilty. [24] 23. Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146. 24. Markarian v R (2005) 228 CLR 357, [51]-[54] (Per McHugh J).…
R v Johnston [2005] NSWCCA 80
Citation 16 (Para 67)

…nd that, he has sought to turn his life around and remain abstinent. The fact that he is regretful should be taken into account. [20] 20. R v Johnson [2005] NSWCCA 80, [28] (Per Santow JA, with whom Bell and Howie JJ agreed).…
R v Elfar [2003] NSWCCA 358
Citation 17 (Para 25)

…evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] – [25]. (3) It is open to a court in assessing the weight to be given to such statements to have regard…
R v Trad [2003] NSWCCA 213
Citation 18

…hnson [2005] NSWCCA 80 R v MacDonnell (2002) 128 A Crim R 44 R v Thomson; R v Houlton (2000) 8 NSWLR 383 R v Trad [2003] NSWCCA 213 Samuel v R [2017] NSWCCA 239 Wat v R [2017] NSWCCA 62 Wu v R [2018] NSWCCA 74 Texts Cited: N/A Category: Sentence Parties: Regina (Crown) Darren Rispen (Offender) Representation: Counse…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 19 (Para 79)

…ffences for which the Offender has pleaded guilty. [24] 23. Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146. 24. Markarian v R (2005) 228 CLR 357, [51]-[54] (Per McHugh J).…
R v Palu [2002] NSWCCA 381
Citation 20

…the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] – [25]. (3) It is open to a cou…
R v McGourty [2002] NSWCCA 335
Citation 21 (Para 25)

…ng of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] – [25]. (3) It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an Offender did not gi…
R v Harris [2001] NSWCCA 322
Citation 22 (Para 81)

…Where asked to take into account Form 1 matters of a different kind, I bear in mind the comments and approach taken in R v Harris. [25] 25. [2001] NSWCCA 322, [36]-[43] (Per Simpson J, with whom Spigelman CJ and Einfield AJ agreed).…
R v Qutami [2001] NSWCCA 353
Citation 23 (Para 58)

…ion in relying upon them where there is no evidence given by the Offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58] – [59]. (2) Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in l…
R v Harrison [2001] NSWCCA 79
Citation 24

…expression of contrition, “to treat this evidence with anything but scepticism represents a triumph of hope over experience”: R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44]. 16. T 4.39. 17. T 22.28-24.49. 18. [2017] NSWCCA 144 (with whom Hoeben CJ at CL and RA Hulme J agreed).…
Morawski v State Rail Authority [2000] NSWCCA 309
Citation 25

…ifficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 7. [2000] NSWCCA 309; 49 NSWLR 383 (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing)…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 26

…ris [2001] NSWCCA 322 R v Johnson [2005] NSWCCA 80 R v MacDonnell (2002) 128 A Crim R 44 R v Thomson; R v Houlton (2000) 8 NSWLR 383 R v Trad [2003] NSWCCA 213 Samuel v R [2017] NSWCCA 239 Wat v R [2017] NSWCCA 62 Wu v R [2018] NSWCCA 74 Texts Cited: N/A Category: Sentence Parties: Regina (Crown) Darren Rispen (Offen…

Legislation Cited

Drug Misuse and Trafficking Act 1985 (NSW) 25(2)
2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 26)
Crimes Act 1900 (ACT)
1 mention (from Para 86)
Electricity Supply Act 1995 (NSW)
1 mention

Medium Neutral Citation:	R v Rispen [2018] NSWDC 403
Hearing dates:	01 November 2018
Date of orders:	14 December 2018
Decision date:	14 December 2018
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	(1) The Offender is convicted (2) Taking into account the pleas of guilty (15%) and the Forms 1 where applicable, the indicative terms of the sentence are: • Sequence 35 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months • Sequence 36 (taking into account the Form 1C matters) – 9 years imprisonment with a non-parole period of 6 years • Sequence 37 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months • Sequence 38 – 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months • Sequence 39 (taking into account the Form 1A matters) – 10 years imprisonment with a non-parole period of 6 years and 8 months • Sequence 41 (taking into account the Form 1B matters) – 4 years and 6 months imprisonment with a non-parole period of 3 years. (3) The aggregate sentence will be 15 years to date from 21 May 2017 and to expire on 20 May 2032 with a non-parole period of 10 years to date from 21 May 2017 and to expire on 20 May 2027. The Offender shall be eligible for release at the conclusion of the non-parole period subject to a decision of the State Parole Authority with the Offender’s earliest release date being 20 May 2027. (4) The earliest release date is 20 May 2027
Catchwords:	SENTENCING – Supply of large commercial quantity of methylamphetamine contrary to Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) – Multiple Form 1 Offences – Plea of guilty - Offender absconded for more than two years in breach of conditional bail – Utilitarian value of the plea - Question of remorse
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Alvares v R (2011) 209 A Crim R 297 Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 137 Collier v R [2012] NSWCCA 213 Imbornone v The Queen [2017] NSWCCA 144 Markarian v R (2005) 228 CLR 357 Melikian v R [2008] NSWCCA 156 Mun v R [2015] NSWCCA 234 R v Harris [2001] NSWCCA 322 R v Johnson [2005] NSWCCA 80 R v MacDonnell (2002) 128 A Crim R 44 R v Thomson; R v Houlton (2000) 8 NSWLR 383 R v Trad [2003] NSWCCA 213 Samuel v R [2017] NSWCCA 239 Wat v R [2017] NSWCCA 62 Wu v R [2018] NSWCCA 74
Texts Cited:	N/A
Category:	Sentence
Parties:	Regina (Crown) Darren Rispen (Offender)
Representation:	Counsel: Ms G Bashir SC (Offender) Mr M Coroneos (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Birchgrove Legal (Offender)
File Number(s):