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R v Sahgal

R v Sahgal

Case [2023] NSWDC 127 28 April 2023

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Sahgal [2023] NSWDC 127
Hearing dates: 12 April 2023
Date of orders: 28 April 2023
Decision date: 28 April 2023
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
See [96].

Catchwords:
CRIME – Sentence – ss 25A(1), 25(2) Drug Misuse and Trafficking Act 1985 (NSW) – Form 1 – Discount 25% for early plea – young offender – user/street dealer – good prospects of rehabilitation – risk of reoffending – 423 days imprisonment before hearing – Community safety – Intensive Corrections Order

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 25D, 44(2A), 53A, 66
Criminal Procedure Act1986 (NSW), s 166
Drug Misuse and Trafficking Act1985 (NSW), ss 25(1), 25(2), 25A(1)

Cases Cited:
AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203
Cam Huynh Giang v R [2017] NSWCCA 25
Daher v R [2018] NSWCCA 287
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Griffiths v R [2021] NSWCCA 226
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
La v R [2021] NSWCCA 136
Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
Parente v R [2017] NSWCCA 284
R v Care; R v Al-Khateib [2020] NSWDC 856
R v Dahmoul [2019] NSWDC 920
R v Dando [2019] NSWDC 833
R v Fadel [2019] NSWDC 26
R v Frankcom [2021] NSWDC 294
R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225
Remington v R [2018] NSWCCA 98
Robertson v R [2017] NSWCCA 205
Shavali v R [2022] NSWCCA 178
Stanley v Director of Public Prosecutions (NSW) & Anor (2023) 407 ALR 222; [2023] HCA 3
Zuffo v R [2017] NSWCCA 187

Category: Sentence
Parties: Rex (Crown)
Sahil Sahgal (Offender)
Representation:
Counsel:
Ms. A Van der Velde (Crown)
Mr. G Scragg (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
LY Lawyers (Offender)

File Number(s): 2020/00060957

Judgment

Sahil Sahgal (the “Offender”) is to be sentenced for the following offences:

s 25A(1) Drug Misuse and Trafficking Act1985 (NSW) (“DMTA”): supply prohibited drug on an ongoing basis (2.78 grams of cocaine) - Maximum Penalty 20 years imprisonment or a fine equal to 3,500 penalty units or both - Sequence 6;

s 25(2) DMTA: supply prohibited drug in not less than a commercial quantity (200.07 grams of MDMA) - Maximum Penalty 20 years imprisonment or a fine equal to 3,500 penalty units or both - Sequence 16. A Standard Non-Parole Period of 10 years applies to the Sequence 16 offence.

By a Form 1 signed by the Offender on 24 March 2023, he asks the Court to take into account the Sequence 10 offence, which he admits, when sentencing him for the Sequence 6 offence. The Sequence 10 offence is:

s 25(1) DMTA - supply prohibited drug (4.46 grams of cocaine) – Maximum Penalty 2 years imprisonment or a fine equal…

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 Sahgal

Details

AGLC: R v Sahgal [2023] NSWDC 127
Case: [2023] NSWDC 127
Decision Date: 28 April 2023

CaseChat Overview and Summary

In the case of R v Sahgal, the defendant was convicted on two counts of trafficking in a prohibited drug and was facing sentencing in the District Court of New South Wales. The case involved the defendant's role as a user and street-level dealer of a prohibited drug, with the defendant having already spent 423 days in custody awaiting the hearing. The legal issues before the court included the appropriate sentencing under sections 25A(1) and 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), the applicability of a 25% discount for the defendant's early plea, and the consideration of the defendant's age, prospects for rehabilitation, and the risk of reoffending in determining an appropriate sentence.

The court considered the principles of sentencing articulated in relevant case law, including the need for punishment and deterrence, as well as the rehabilitation of the offender. The court found that the defendant's early plea warranted a 25% discount, and that the defendant's age and potential for rehabilitation were mitigating factors. However, the court also recognised the seriousness of the offences and the need to protect the community. Ultimately, the court determined that an Intensive Corrections Order was the most appropriate sentence, balancing the need for punishment with the potential for rehabilitation and the risk of reoffending.

The court ordered that the defendant be subject to an Intensive Corrections Order for a period of 18 months, with the first six months to be served in custody. The order also included conditions aimed at facilitating the defendant's rehabilitation and reintegration into the community, such as participation in drug treatment programs and regular reporting to a corrections officer. The court's decision reflects the importance of balancing the needs of the community with the potential for rehabilitation and reintegration of offenders, particularly young offenders with good prospects for rehabilitation.

Orders

Orders of the court

See [96].

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 Sahgal [2023] NSWDC 127

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

Stanley v DPP (NSW)
[2023] HCA 3 Para 90

…e “paramount consideration” of community safety identified in s 66(1): Stanley v Director of Public Prosecutions (NSW) & Anor (2023) 407 ALR 222; [2023] HCA 3 per the plurality at [54]. s 66(3) requires this be done whilst the court also considers the purposes of sentencing set out in s 3A CSPA and any relevant…
Stanley v Director of Public Prosecutions (NSW) & Anor
[2022] HCATrans 202 Para 90

…st Intensive Correction in the community, for the purposes of evaluating the “paramount consideration” of community safety identified in s 66(1): Stanley v Director of Public Prosecutions (NSW) & Anor (2023) 407 ALR 222; [2023] HCA 3 per the plurality at [54]. s 66(3) requires this be done whilst the court also considers the purposes of sentencing set out in…
Shavali v R
[2022] NSWCCA 178 Para 89

…efit of the 423 days imprisonment he has served to date: Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 per Simpson AJA at [63]; Shavali v R [2022] NSWCCA 178 per Brereton JA at [11]. The balance of the head term of imprisonment at which I have arrived, less 423 days served is 2 years, 10 months and 1 day.…
Stanley v Director of Public Prosecutions (NSW)
[2021] NSWCA 337 Para 90

…ses of evaluating the “paramount consideration” of community safety identified in s 66(1): Stanley v Director of Public Prosecutions (NSW) & Anor (2023) 407 ALR 222; [2023] HCA 3 per the plurality at [54]. s 66(3) requires this be done whilst the court also considers the purposes of sentencing set out in s 3A CSPA an…
Griffiths v The Queen
[2021] NSWCCA 226 Para 83

…I have also considered the following cases: Griffiths v R [2021] NSWCCA 226; La v R [2021] NSWCCA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26.…
La v R
[2021] NSWCCA 136 Para 83

…I have also considered the following cases: Griffiths v R [2021] NSWCCA 226; La v R [2021] NSWCCA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26.…
R v Frankcom
[2021] NSWDC 294 Para 83

…I have also considered the following cases: Griffiths v R [2021] NSWCCA 226; La v R [2021] NSWCCA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26.…
Mandranis v The Queen
[2021] NSWCCA 97 Para 89

…nce by way of ICO, the Offender is entitled to the benefit of the 423 days imprisonment he has served to date: Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 per Simpson AJA at [63]; Shavali v R [2022] NSWCCA 178 per Brereton JA at [11]. The balance of the head term of imprisonment at which I have arrived,…
R v Care; R v Al-Khateib
[2020] NSWDC 856 Para 83

…so considered the following cases: Griffiths v R [2021] NSWCCA 226; La v R [2021] NSWCCA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26.…
R v Dahmoul
[2019] NSWDC 920 Para 83

…ses: Griffiths v R [2021] NSWCCA 226; La v R [2021] NSWCCA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26.…
R v Dando
[2019] NSWDC 833 Para 83

…WCCA 226; La v R [2021] NSWCCA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26.…
R v Fadel
[2019] NSWDC 26 Para 83

…CA 136; R v Frankcom [2021] NSWDC 294; R v Care; R v Al-Khateib [2020] NSWDC 856; R v Dahmoul [2019] NSWDC 920; R v Dando [2019] NSWDC 833; R v Fadel [2019] NSWDC 26.…
Remington v R
[2018] NSWCCA 98 Para 82

…In Remington v R [2018] NSWCCA 98, Fullerton J (Bathurst CJ and Campbell J agreeing), the offender had entered pleas of guilty to 3 offences against s 25(1) DMTA. That is a less serious offence than those under consideration here. The statutory goalpost was a maximum term of 15 years imprisonment. There was no stan…
Parente v R
[2017] NSWCCA 284 Para 68

…Under the subheading “How should sentencing in drug supply cases be approached?”, In Parente v R [2017] NSWCCA 284 at [107]-[112] the Court (Macfarlan JA; Hoeben CJ at CL; Leeming JA; Johnson J; RA Hulme J) provided guidance as to some matters which should be emphasised in the application of general principles of se…
Robertson v R
[2017] NSWCCA 205 Para 68

…possible alternatives, that no penalty other than imprisonment is appropriate. The Court approved what was stated by Simpson JA in Robertson v R [2017] NSWCCA 205 at [97]:…
Zuffo v R
[2017] NSWCCA 187 Para 68

…l evidence supporting the defence argument that he is of good prospects of rehabilitation, although commonly linked, are separate concepts: Zuffo v R [2017] NSWCCA 187 at [47]. Price J with reference to R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [118]–[121] adopted that distinction as drawn by McClellan CJ…
Giang v R
[2017] NSWCCA 25 Para 19

…s not a mitigating factor. There is no evidence of broad distribution into the community, which would be an aggravating factor: Cam Huynh Giang v R [2017] NSWCCA 25 at [18]-[24].…
R v Pogson
[2012] NSWCCA 225 Para 68

…ation, although commonly linked, are separate concepts: Zuffo v R [2017] NSWCCA 187 at [47]. Price J with reference to R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [118]–[121] adopted that distinction as drawn by McClellan CJ at CL and Johnson J, and noted that whilst judges express an opinion as to whether t…
AM v R
[2012] NSWCCA 203 Para 73

…rrounding family and fiancée network which will support him in achieving the benefit of rehabilitative assistance: AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203 at [86] (per Johnson J with McClellan CJ at CL and Garling J agreeing).…
Hili v The Queen
[2010] HCA 45 Para 76

…I am mindful of the relevance of sentences in other cases and the need for consistency of sentencing: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54]. The High Court approved (at [54]) the statement by Simpson J (as her Honour then was) in De La Rosa at [304], that “When considering past sente…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 75

…d be a reduction in the sentence which would otherwise have been imposed: Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] per McClellan CJ at CL.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
25D, 3A, 44(2A), 5, 53A, 66, 7 8 mentions (from Para 28)
Drug Misuse and Trafficking Act 1985 (NSW)
25(1), 25(2), 25A(1) 4 mentions (from Para 1)
Criminal Procedure Act 1986 (NSW)
166 2 mentions (from Para 3)

Medium Neutral Citation:	R v Sahgal [2023] NSWDC 127
Hearing dates:	12 April 2023
Date of orders:	28 April 2023
Decision date:	28 April 2023
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	See [96].
Catchwords:	CRIME – Sentence – ss 25A(1), 25(2) Drug Misuse and Trafficking Act 1985 (NSW) – Form 1 – Discount 25% for early plea – young offender – user/street dealer – good prospects of rehabilitation – risk of reoffending – 423 days imprisonment before hearing – Community safety – Intensive Corrections Order
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 25D, 44(2A), 53A, 66 Criminal Procedure Act1986 (NSW), s 166 Drug Misuse and Trafficking Act1985 (NSW), ss 25(1), 25(2), 25A(1)
Cases Cited:	AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203 Cam Huynh Giang v R [2017] NSWCCA 25 Daher v R [2018] NSWCCA 287 Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Griffiths v R [2021] NSWCCA 226 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 La v R [2021] NSWCCA 136 Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97 Parente v R [2017] NSWCCA 284 R v Care; R v Al-Khateib [2020] NSWDC 856 R v Dahmoul [2019] NSWDC 920 R v Dando [2019] NSWDC 833 R v Fadel [2019] NSWDC 26 R v Frankcom [2021] NSWDC 294 R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225 Remington v R [2018] NSWCCA 98 Robertson v R [2017] NSWCCA 205 Shavali v R [2022] NSWCCA 178 Stanley v Director of Public Prosecutions (NSW) & Anor (2023) 407 ALR 222; [2023] HCA 3 Zuffo v R [2017] NSWCCA 187
Category:	Sentence
Parties:	Rex (Crown) Sahil Sahgal (Offender)
Representation:	Counsel: Ms. A Van der Velde (Crown) Mr. G Scragg (Offender) Solicitors: Director of Public Prosecutions (Crown) LY Lawyers (Offender)
File Number(s):	2020/00060957