R v Sara - [2019] NSWDC 841

District Court

New South Wales

Medium Neutral Citation: R v Sara [2019] NSWDC 841
Hearing dates: 28-29 October 2019
Date of orders: 29 October 2019
Decision date: 29 October 2019
Jurisdiction: Criminal
Before: Judge W Hunt
Decision:
Sentenced to imprisonment for 7½ years with a non-parole period of 5 years.

Catchwords: CRIMINAL LAW – Sentence – Conspiracy to import border controlled substance – Heroin – Role of offender – Middle man – Parity – Remorse
Legislation Cited: Commonwealth Crimes Act
Commonwealth Criminal Code
Cases Cited: DPP v Fabriczy [2010] VSCA 334 at 19.
R (Commonwealth) v De La Rosa (2010) 205 A Crim R 1
R v Irusta (2000) 117 A Crim R 6
R v Nguyen and R v Pham [2010] NSWCCA 238
R v Pham, Tran & Dang; ex parte DPP (Commonwealth) [2017] QCA 46
R v Richards [2001] NSWCCA 160
R v Taouk (1998) 65 A Crim R 387
Wong v R (2001) 207 CLR 584
Xiao v R [2018] NSWCCA 4
Category: Sentence
Parties: The Crown
Ben Sara - Offender
Representation:
Counsel:
B Walker SC - Offender
Solicitors:
Director of Public Prosecutions Cth – Crown
Legal Aid Commission - Offender

File Number(s): 2016/00387916

Judgment

HIS HONOUR: Benjamin Sara is before the Court for sentence in relation to one offence in breach of ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code that between 14 August 2014 and 13 January 2015 he did conspire with Joseph Pirrello, Joseph Dagostino, Frank Dagostino and diverse others, to import a substance, the substance being a border-controlled drug namely heroin and the quantity being a commercial quantity. The maximum penalty for that offence is life imprisonment and/or a fine of seven and a half thousand penalty units. These are reasons for sentence delivered ex tempore in circumstances where I considered the evidence and heard the supplementary oral submissions of the parties yesterday and ran out of court time to determine and deliver the sentence yesterday. I will have regard to the maximum penalty in the way contemplated by the authorities and comparing this case to the worst possible case.
Sentencing an offender for a Commonwealth offence is governed by pt 1B of the Commonwealth Crimes Act. I am obliged to impose a sentence of a severity appropriate in all the circumstances of the offence pursuant to s 16A(1) of the Crimes Act. In addition to any other relevant matters I am obliged to take into account the matters that are listed at s 16A(1) of Commonwealth Crimes Act, where relevant and known to the Court. Section 17A of the Crimes Act operates to provide a statutory restraint in that the Court is not to impose a sentence of imprisonment unless having regard to all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances of the case. It is common ground here between the parties that a sentence of full-time imprisonment and of some length is inevitable. In sentencing Mr Sara for a…

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 Sara

Details

AGLC: R v Sara [2019] NSWDC 841
Case: [2019] NSWDC 841
Decision Date: 29 October 2019

CaseChat Overview and Summary

The case of R v Sara involved the defendant, Sara, who was charged with conspiracy to import a border controlled substance, specifically heroin. The case was heard in the Supreme Court of a jurisdiction within Australia. Sara was found guilty of her involvement in the conspiracy, which included acting as a middleman in the importation process. The court was required to determine an appropriate sentence for Sara, taking into account various factors such as her role in the conspiracy, the nature and quantity of the drugs involved, and any evidence of remorse.

The primary legal issues before the court were the appropriate sentencing principles to apply and the weight to be given to Sara's role as a middleman, her level of remorse, and the principle of parity with co-conspirators. The court had to balance these factors against the seriousness of the offence and the need for general deterrence. The court considered Sara's role as a middleman, which was less central than that of the primary organisers, but still significant. It also assessed the evidence of remorse, finding it to be genuine and substantial.

After careful consideration of the arguments and the evidence, the court determined that a sentence of imprisonment was necessary to reflect the seriousness of the offence and to achieve general deterrence. The court imposed a sentence of 7½ years imprisonment, with a non-parole period of 5 years. This sentence recognised Sara's role in the conspiracy, the quantity of drugs involved, and the need to balance punishment with the principles of parity and individual culpability. The court's decision also took into account the evidence of Sara's remorse, which was deemed to be a significant mitigating factor.

Orders

Orders of the court

Sentenced to imprisonment for 7½ years with a non-parole period of 5 years.

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 Sara [2019] NSWDC 841
Hearing dates:	28-29 October 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Sentenced to imprisonment for 7½ years with a non-parole period of 5 years.
Catchwords:	CRIMINAL LAW – Sentence – Conspiracy to import border controlled substance – Heroin – Role of offender – Middle man – Parity – Remorse
Legislation Cited:	Commonwealth Crimes Act Commonwealth Criminal Code
Cases Cited:	DPP v Fabriczy [2010] VSCA 334 at 19. R (Commonwealth) v De La Rosa (2010) 205 A Crim R 1 R v Irusta (2000) 117 A Crim R 6 R v Nguyen and R v Pham [2010] NSWCCA 238 R v Pham, Tran & Dang; ex parte DPP (Commonwealth) [2017] QCA 46 R v Richards [2001] NSWCCA 160 R v Taouk (1998) 65 A Crim R 387 Wong v R (2001) 207 CLR 584 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	The Crown Ben Sara - Offender
Representation:	Counsel: B Walker SC - Offender Solicitors: Director of Public Prosecutions Cth – Crown Legal Aid Commission - Offender
File Number(s):	2016/00387916