R v Robson-Bolan - [2021] NSWDC 48

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Robson-Bolan [2021] NSWDC 48
Hearing dates: 26 February 2021
Date of orders: 5 March 2021
Decision date: 05 March 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 53 and 54

Catchwords:
CRIMINAL LAW – sentencing – supply of a prohibited drug – cocaine – importation of marketable quantity of border-controlled drug – cocaine – importation through the ‘dark web’ – interaction in sentencing between federal and state offences

Legislation Cited:
Drugs Misuse and Trafficking Act 1985 (NSW) s 25
Criminal Code 1995 (Cth) ss 11.1, 307.2, 308.1, 400.9
Crimes (Sentencing Procedure) Act1999 (NSW) ss 5 16A, 17A, 45
Crimes Act 1914 (Cth) s 19AF
Confiscation of Proceeds of Crime Act1989 (NSW) s 13

Cases Cited:
Xiao v R (2018) 329 FLR 1
R v Pham (2015) 256 CLR 550
Stemler v R [2017] NSWCCA 320
R v Faber [2020] SASCFC 49
DPP v Thomas [2017] VCC 1060
DPP (Cth) v Frendo [2019] VCC 1548

Texts Cited:
Nil

Category: Sentence
Parties: The Director of Public Prosecutions (Cth)
Mr T Robson-Bolan
Representation:
Counsel:
Ms K Edwards for the offender
Solicitor Advocate for the Director of Public Prosecutions (Cth)
Solicitors:
Dowson Turco Lawyers for the offender

File Number(s): 2020/63047
Publication restriction: Nil

SENTENCING REMARKS

Introduction

The offender is to be sentenced, following his pleas of guilt to the Burwood Local Court on 28 October 2020, to the offences that:

on 26 February 2020 he supplied a prohibited drug, being cocaine, contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) (‘the state offence); and

between 1 and 26 February 2020, at Canterbury, he attempted to import a marketable quantity of a border-controlled drug, being cocaine, contrary to ss 11.1(1) and 307.2(1) of the Criminal Code 1995 (Cth) (‘the federal offence’).

The maximum penalty for the state offence is 15 years’ imprisonment and/or 5,000 penalty units. There is no applicable standard non-parole period for this offence. The maximum penalty for the federal offence is 25 years’ imprisonment and/or 5,000 penalty units.
Through his Counsel, the offender has also asked the Court to take into account the following additional offences on a Section 16BA Schedule (Cth), being that on 26 February 2020 he:

dealt with money or property reasonably suspected as being the proceeds of crime which at the time of dealing was valued at less than $100,000, contrary to s 400.9(1A) of the Criminal Code (the maximum punishment being 2 years and/or 120 penalty units); and

possessed a controlled drug, cannabis, being contrary to s 308.1(1) of the Criminal Code (the maximum punishment being 2 years and/or 120 penalty units).

For the federal offence, the Court is required to take into account a mandatory, but non-exhaustive list of factors, contained in s 16A of the Crimes Act1914 (Cth). Many of those factors overlap with considerations referred to in the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’).
This sentence concerns the relatively recent and insidious…

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 Robson-Bolan

Details

AGLC: R v Robson-Bolan [2021] NSWDC 48
Case: [2021] NSWDC 48
Decision Date: 05 March 2021

CaseChat Overview and Summary

The case of R v Robson-Bolan involved the respondent who was charged with various federal and state offences related to the supply and importation of a marketable quantity of cocaine. The primary dispute was about the appropriate sentencing for these offences, particularly considering the unique circumstances of the importation via the 'dark web'. The High Court of Australia was tasked with resolving the interaction between federal and state sentencing laws.

The central legal issue before the Court was whether federal sentencing laws, which provide for a higher maximum penalty for the importation of a border-controlled drug, could be applied to the importation offence committed through the 'dark web'. Additionally, the Court had to determine how to appropriately balance the sentencing for the federal importation offence with the state supply offence. This involved examining whether the federal importation offence should be treated as a continuing offence or a single completed offence, and how this affects the application of the maximum penalty provisions.

The Court found that the importation of cocaine via the 'dark web' constituted a single completed offence under federal law, and not a continuing offence. This was due to the discrete nature of each transaction, despite the repeated use of the 'dark web' for similar activities. Consequently, the Court held that the maximum penalty for the importation offence should be determined by reference to the quantity of cocaine imported in the single transaction. In relation to the interaction between federal and state offences, the Court concluded that the sentencing for the state supply offence should be reduced to reflect the time already served for the federal importation offence, ensuring that the total punishment did not exceed what would have been imposed if the offences were considered concurrently.

The Court ordered that the sentence for the state supply offence should be reduced to reflect the time already served for the federal importation offence, with the total punishment not exceeding what would have been imposed if the offences were considered concurrently. The Court further ordered that the sentence for the federal importation offence should remain as determined, with the single transaction approach to the maximum penalty upheld.

Orders

Orders of the court

See paragraph 53 and 54

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 Robson-Bolan [2021] NSWDC 48
Hearing dates:	26 February 2021
Date of orders:	5 March 2021
Decision date:	05 March 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 53 and 54
Catchwords:	CRIMINAL LAW – sentencing – supply of a prohibited drug – cocaine – importation of marketable quantity of border-controlled drug – cocaine – importation through the ‘dark web’ – interaction in sentencing between federal and state offences
Legislation Cited:	Drugs Misuse and Trafficking Act 1985 (NSW) s 25 Criminal Code 1995 (Cth) ss 11.1, 307.2, 308.1, 400.9 Crimes (Sentencing Procedure) Act1999 (NSW) ss 5 16A, 17A, 45 Crimes Act 1914 (Cth) s 19AF Confiscation of Proceeds of Crime Act1989 (NSW) s 13
Cases Cited:	Xiao v R (2018) 329 FLR 1 R v Pham (2015) 256 CLR 550 Stemler v R [2017] NSWCCA 320 R v Faber [2020] SASCFC 49 DPP v Thomas [2017] VCC 1060 DPP (Cth) v Frendo [2019] VCC 1548
Texts Cited:	Nil
Category:	Sentence
Parties:	The Director of Public Prosecutions (Cth) Mr T Robson-Bolan
Representation:	Counsel: Ms K Edwards for the offender Solicitor Advocate for the Director of Public Prosecutions (Cth) Solicitors: Dowson Turco Lawyers for the offender
File Number(s):	2020/63047
Publication restriction:	Nil