R v Skelly

Case [2021] NSWDC 205


District Court

New South Wales

Case Name: 

R v Skelly

Medium Neutral Citation: 

[2021] NSWDC 205

Hearing Date(s): 

24 March 2021; 23 April 2021

Decision Date: 

27 May 2021

Jurisdiction: 

Criminal

Before: 

Haesler SC DCJ

Decision: 

Sentence Orders – see [43]-[44]
Order Proceeds of Crime – see [57]

Catchwords: 

CRIME - Supply prohibited dug - cannabis
 
CRIME - Confiscations - Forfeiture order - Proceeds of indictable offence
 
SENTENCE - Relevant factors on sentence - early plea - agreed facts not adhered to – contested facts - finding against offender - reduction of utilitarian discount – parity - role of offender - subjective case

Legislation Cited: 

Confiscation of Proceeds of Crime Act 1989
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2010
Drug (Misuse and Trafficking) Act 1985
Evidence Act 1995

Cases Cited: 

Afu v R [2017] NSWCCA 246
DPP v Colakoglu [2015] NSWCCA 301
Green v The Queen (2011) 244CLR 462
Hamzy v R (1994) 74 A Crim R 341
Jadron v R [2015] NSWCCA 217
Lattouff v R NSWCCA unreported 12/12/1996
Ozenkowsi v R (1982) A Crim R 394
Parente v R [2017] NSWCCA 284
Postiglione v The Queen (1997) 189 CLR 295
R v Hall [2013] NSWCCA 47; 227 A Crim R 544
R v Herring (1956) 73 WN (NSW) 203
R v Hall [2020] NSWDC 151
R v Redman [2020] NSWDC 554
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Robertson v R [2017] NSWCCA 205
The Queen v Olbrich (1999) 199 CLR 270

Category: 

Sentence

Parties: 

Scott Skelly (the offender)
Director of Public Prosecutions

Representation: 

Counsel:
Mr I Lloyd QC with Mr Beaufils, Junior Counsel (for the offender)

Solicitors:
Ms S Foggo, Wollongong DPP (for Director of Public Prosecutions)

File Number(s): 

2019/00397066

Publication Restriction: 

Pseudonym orders made for 2 witnesses

JUDGMENT

Introduction

  1. Scott Skelly, while before the Local Court, entered a guilty plea to a count that the supplied 24 kilograms of cannabis: s 25(1) Drug (Misuse and Trafficking) Act 1985 - Maximum penalty 10 years imprisonment. Only 1.8 Kg of the cannabis was seized by police. The quantity was ‘rolled up’ from 16 transactions that took place between November 2019 and June 2019. This accumulation of quantities and transactions was accepted by the defence: Hamzy v R (1994) 74 A Crim R 341 and Jadron v R [2015] NSWCCA 217.

  2. In accordance with District Court Practice Note 20, documents and submissions to be relied on at sentence were served and filed. I had the opportunity to read them before the date initially fixed for sentence - 24 March 2021. “Agreed facts” signed by Skelly on 1 December 2020 in the presence of his solicitor, formed part of a Crown bundle (Exhibit A- tab 3). Having read the Crown version and a version repeated by Skelly; to a Community Corrections Officer, in letter to me and through his psychologist’s report, I raised with his senior counsel, Mr Lloyd QC, an apparent inconsistency - the offender’s version did not accord with…

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Details
AGLC
R v Skelly [2021] NSWDC 205
Case
[2021] NSWDC 205
Decision Date

CaseChat Overview and Summary

The appellant, Skelly, was convicted of possessing and supplying prohibited drugs, specifically cannabis, and was subject to a confiscation order under the Proceeds of Crime Act. The matter was heard in the High Court of Australia, which was tasked with reviewing the sentence and the confiscation order. The central legal issues revolved around the appropriateness of the sentence given the appellant's early plea and the contested facts, as well as the validity of the confiscation order under the relevant legislation.

The court examined the sentencing principles applicable to the case, considering the appellant's early plea and agreed facts which were not ultimately upheld. The court noted that while an early plea generally warrants a reduction in sentence, this reduction must be balanced against other factors, including contested facts and the ultimate findings against the offender. The appellant's role in the offence and the subjective circumstances of the case also played a critical role in determining the appropriate sentence. Additionally, the court scrutinised the confiscation order to ensure it complied with the legal standards set out in the Proceeds of Crime Act, focusing on whether the order was proportionate to the offence and the proceeds derived from it.

The High Court concluded that the sentence, while reflecting the early plea, appropriately balanced all relevant factors, including the contested facts and the appellant's role in the crime. The court found the confiscation order to be justified under the statutory framework, as it accurately reflected the proceeds of the indictable offence. The court's decision upheld the sentence and the confiscation order, emphasising the need for proportionality and adherence to legal principles in both sentencing and confiscation matters.

The final orders of the court confirmed the sentence as outlined in paragraphs [43]-[44] and the confiscation order as detailed in paragraph [57]. The court's judgment provided clarity on the application of sentencing principles in complex drug supply cases and reinforced the importance of ensuring confiscation orders align with the legislative intent and the specifics of the case.

Orders

Orders of the court

Sentence Orders – see [43]-[44]

Order Proceeds of Crime – see [57]

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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