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R v Russell

R v Russell

Case [2022] NSWDC 416 16 September 2022

Drug offences

Money Laundering

Pervert the course of justice

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Russell [2022] NSWDC 416
Hearing dates: 29 July 2022
Date of orders: 16 September 2022
Decision date: 16 September 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The offender is convicted.
2 The terms of imprisonment that I would have imposed for the State offences, if separate sentences were to be imposed, after taking into account the discount of 25% for the pleas of guilty are:

Count

Offence

Indicative sentence

3

Supply prohibited drug on 31 January 2019

18 months

4

Supply prohibited drug on 18 February 2019, taking into account the offence on the Form 1

2 years

5

Supply prohibited drug on 7 March 2019

3 years

6

Supply prohibited drug on 14 May 2019

2 years and 6 months

7

Supply prohibited drug between 26 February 2019 and 4 June 2019 being an amount not less than the commercial quantity

5 years with a non-parole period of 2 years and 6 months

3 I impose an aggregate term of imprisonment for the State offences of 7 years with a non-parole period of 3 years and 6 months to date from 8 May 2019. The head sentence will expire on 7 May 2026 and the non-parole period will expire on 7 November 2022.
4 The terms of imprisonment that I would have imposed for the Federal offences, if separate sentences were to be imposed, after taking into account the discount of 15% for Counts 1 and 2 and 25% for Count 8 for the pleas of guilty are:

Count

Offence

Indicative sentence

1

Attempt to possess a commercial quantity of a border control drug, between about 3 October 2017 on 13 October 2017, taking into account the proceeds of crime offence on the s 16BA schedule

8 years

2

Import a commercial quantity of border controlled drug, between about 15 November 2017 and 3 August 2018, taking into account the attempt to pervert the course of justice offence on the s 16BA schedule

6 years

8

Conspire with Witness A, Witness B and Witness C to import a commercial quantity of a border control drug, methamphetamine, between 18 April 2017 and 1 November 2017

12 years

5 I impose an aggregate term of imprisonment for the Federal offences of 14 years to date from 8 May 2021 and expire on 7 May 2035. I fix a single non-parole period of 7 years which will expire on 7 May 2028.
6 The total effective term of imprisonment I have imposed for all of the offences is 16 years with a non-parole period of 9 years.
7 The offender will be eligible to be released on parole on 7 May 2028.

Catchwords:
CRIME — Drug offences — Commonwealth offences
— Import/Export border-controlled prohibited plant or drug — Possess prohibited drug — Supply prohibited drug
CRIME - Money Laundering - Dealing with money suspected of being proceeds of crime
CRIME - Public justice offences - Do an act with intent to…

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 Russell

Details

AGLC: R v Russell [2022] NSWDC 416
Case: [2022] NSWDC 416
Decision Date: 16 September 2022

CaseChat Overview and Summary

In the matter of R v Russell, the offender was convicted of a series of drug-related offences and other criminal activities in the Federal Circuit and Family Court of Australia. The charges included possession, supply, and importation of prohibited drugs, as well as money laundering and perverting the course of justice. The offender pleaded guilty to several counts and the court was tasked with determining the appropriate sentences for each offence.

The legal issues before the court involved interpreting and applying the relevant statutes to the facts of the case, calculating the appropriate sentences for each offence, and determining the aggregate sentence, including non-parole periods. The court also needed to consider the discount for the offender's guilty pleas in accordance with statutory guidelines.

In delivering the judgment, the court examined the nature and circumstances of each offence, the offender's criminal history, and the impact of the offences on the community. The court considered the seriousness of the offences, the need for deterrence and denunciation, and the principles of rehabilitation and proportionality. After considering all relevant factors, the court imposed a total effective term of imprisonment of 16 years, with a non-parole period of 9 years. The offender will be eligible for parole release on 7 May 2028.

Orders

Orders of the court

1 The offender is convicted.

2 The terms of imprisonment that I would have imposed for the State offences, if separate sentences were to be imposed, after taking into account the discount of 25% for the pleas of guilty are:

Count

Offence

Indicative sentence

Supply prohibited drug on 31 January 2019

18 months

Supply prohibited drug on 18 February 2019, taking into account the offence on the Form 1

2 years

Supply prohibited drug on 7 March 2019

3 years

Supply prohibited drug on 14 May 2019

2 years and 6 months

Supply prohibited drug between 26 February 2019 and 4 June 2019 being an amount not less than the commercial quantity

5 years with a non-parole period of 2 years and 6 months

3 I impose an aggregate term of imprisonment for the State offences of 7 years with a non-parole period of 3 years and 6 months to date from 8 May 2019. The head sentence will expire on 7 May 2026 and the non-parole period will expire on 7 November 2022.

4 The terms of imprisonment that I would have imposed for the Federal offences, if separate sentences were to be imposed, after taking into account the discount of 15% for Counts 1 and 2 and 25% for Count 8 for the pleas of guilty are:

Count

Offence

Indicative sentence

Attempt to possess a commercial quantity of a border control drug, between about 3 October 2017 on 13 October 2017, taking into account the proceeds of crime offence on the s 16BA schedule

8 years

Import a commercial quantity of border controlled drug, between about 15 November 2017 and 3 August 2018, taking into account the attempt to pervert the course of justice offence on the s 16BA schedule

6 years

Conspire with Witness A, Witness B and Witness C to import a commercial quantity of a border control drug, methamphetamine, between 18 April 2017 and 1 November 2017

12 years

5 I impose an aggregate term of imprisonment for the Federal offences of 14 years to date from 8 May 2021 and expire on 7 May 2035. I fix a single non-parole period of 7 years which will expire on 7 May 2028.

6 The total effective term of imprisonment I have imposed for all of the offences is 16 years with a non-parole period of 9 years.

7 The offender will be eligible to be released on parole on 7 May 2028.

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

AGLC Citation

R v Russell [2022] NSWDC 416

Most Recent Citation

R v Russell [2022] NSWDC 513

Cases citing this decision · 2 of 2 shown

R v Waters
[2024] NSWDC 126 Para 84

…which he has since been acquitted. He should therefore be afforded a 15% discount, relying on the case R v Oinonen [1999] NSWCCA 310 and R v Russell [2022] NSWDC 416 at [7].…
R v Russell
[2022] NSWDC 513 Para 3

…On 16 September 2022 I delivered judgment sentencing the offender for various drug offences: R v Russell [2022] NSWDC 416. The relevant background of the involvement of the persons identified as Witnesses A, B and C is included in that judgment. The effect of the orders made by consent is to suppress the true ident…

View all 2 citing cases →

Cases cited in this decision · 10 of 10 shown

Xiao v R
[2019] NSWCCA 4

…v El Karhani (1990) 21 NSWLR 370 R v Lamella [2014] NSWCCA 122 R v Nguyen (2010) 205 A Crim R 106 R v Olbrich (1999) 199 CLR 270 Xiao v R (2018) 96 NSWLR 1 Category: Sentence Parties: Regina Levi Russell (Offender) Representation: Counsel: D Staehli SC with B Anniwell (Commonwealth Director of Public Prosecutions) L…
R v Lamella
[2014] NSWCCA 122 Para 203

…s 16BA procedure: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546 and R v Lamella [2014] NSWCCA 122 at [48].…
Hili v The Queen
[2010] HCA 45 Para 9

…Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Qu een (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).…
Danial v R
[2008] NSWCCA 15

…cedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546 Bugmy v The Qu een (1990) 169 CLR 525 Cameron v The Queen (2002) 209 CLR 339 Danial v R [2008] NSWCCA 15 Deakin v The Queen (1984) 58 ALJR 367 Hili v The Queen (2010) 242 CLR 520 Johnson v The Queen (2004) 78 ALJR 616 Power v The Queen (1974) 131 CLR 623 R v El Karh…
Johnson v The Queen
[2004] HCA 15 Para 6

…of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].…
Cameron v the Queen
[2002] HCA 6

…al’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546 Bugmy v The Qu een (1990) 169 CLR 525 Cameron v The Queen (2002) 209 CLR 339 Danial v R [2008] NSWCCA 15 Deakin v The Queen (1984) 58 ALJR 367 Hili v The Queen (2010) 242 CLR 520 Johnson v The Queen (2004) 78 ALJR 616 Power v…
R v Olbrich
[1999] HCA 54 Para 4

…oubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).…
Bugmy v The Queen
[1990] HCA 18 Para 9

…ion of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Qu een (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).…
Deakin v The Queen
[1984] HCA 31 Para 9

…levant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Qu een (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell J…
Power v The Queen
[1974] HCA 26 Para 9

…fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Qu een (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gu…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 10)
Crimes Act 1914 (Cth)
1 mention (from Para 2)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 3)
Part IB Crimes Act 1914 (Cth)
1 mention (from Para 5)
Sentencing Procedure Act 1999 (NSW)
1 mention (from Para 206)