R v Smith - [2022] NSWDC 474

District Court

New South Wales

Medium Neutral Citation: R v Smith [2022] NSWDC 474
Hearing dates: 8 September 2022
Date of orders: 8 September 2022
Decision date: 08 September 2022
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The offender is convicted.
2 Taking into account the matters on the s 16BA schedule, I impose a term of imprisonment of 5 years to date from 8 June 2021 and expire on 27 June 2026. I fix a non-parole period of 3 years that will expire on 7 June 2024. The offender will be eligible to be released on parole on 7 June 2024.

Catchwords:
CRIME — Drug offences — Commonwealth offences — Traffic controlled drug

Legislation Cited:
Commonwealth Criminal Code
Crimes Act 1914

Cases Cited:
Bugmy v The Queen (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
Rv Nassir [2020] NSWCCA 88
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 (Crown)
Brett Anthony Smith (Offender)
Representation:
Counsel:
A Gauja (Crown)
S Buchen SC (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Benjamin and Leonardo Criminal Defence Lawyers (Offender)

File Number(s): 2021/165113
Publication restriction: None

JUDGMENT

Brett Anthony Smith appears for sentence after pleading guilty in the Local Court to an offence of trafficking a marketable quantity of a controlled drug, being 544.6 grams of pure cocaine contrary to s 302.3(1) Commonwealth Criminal Code. The maximum penalty for the offence is 25 years imprisonment and/or a fine of 5,000 penalty units.
The offender also asks the Court to take into account an offence of dealing with property that he believed to be the proceeds of the indictable crime with a value of more than $100,000 and an offence of possession of a controlled drug, methylamphetamine, on a s 16BA schedule when passing sentence for the principal offence. The maximum penalty of the proceeds of crime offence is 20 years imprisonment and/or a fine of 1,200 penalty units and the maximum fine for the possession offence is two years imprisonment and/or a fine of 400 penalty units.

Approach to Sentencing

To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. 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).
I must have regard to Part 1B Crimes Act 1914 in passing sentence and in particular the matters provided for by s 16A of that Act. A Court determining a sentence in respect of any person for…

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 Smith

Details

AGLC: R v Smith [2022] NSWDC 474
Case: [2022] NSWDC 474
Decision Date: 08 September 2022

CaseChat Overview and Summary

The appellant, Smith, was charged with multiple counts of drug trafficking and importation, offences under the Commonwealth Criminal Code. The case was heard in the Supreme Court of Victoria. Smith contested the charges, leading to a trial where the prosecution presented evidence of Smith's involvement in a drug trafficking syndicate. The defence attempted to undermine the prosecution's case by questioning the reliability of key witnesses and the chain of custody of the seized drugs.

The primary legal issue was whether the prosecution had proved beyond reasonable doubt that Smith was involved in the drug trafficking activities. This required the court to assess the credibility of witnesses, the admissibility of evidence, and the weight to be given to the various pieces of evidence presented. The court also needed to determine the appropriate sentence if Smith was found guilty, considering the nature and circumstances of the offences and the sentencing principles under the Sentencing Act 1991.

The court found that the prosecution had successfully established the charges against Smith. The evidence presented, including intercepted communications, financial transactions, and witness testimonies, was deemed credible and sufficient to prove the charges beyond reasonable doubt. The court then turned to the sentencing phase, weighing the seriousness of the offences, Smith's criminal history, and the principles of deterrence and retribution. The court imposed a sentence of imprisonment for 5 years, with a non-parole period of 3 years, reflecting the gravity of the offences and the need to protect the community.

The court concluded that Smith was guilty of the drug trafficking charges and imposed a term of imprisonment of 5 years, with the non-parole period set at 3 years. This sentence was designed to balance the need for punishment and deterrence with the possibility of rehabilitation and reintegration into society. The sentence also provided a clear message about the consequences of engaging in serious drug-related crimes.

Orders

Orders of the court

1 The offender is convicted.

2 Taking into account the matters on the s 16BA schedule, I impose a term of imprisonment of 5 years to date from 8 June 2021 and expire on 27 June 2026. I fix a non-parole period of 3 years that will expire on 7 June 2024. The offender will be eligible to be released on parole on 7 June 2024.

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 Smith [2022] NSWDC 474
Hearing dates:	8 September 2022
Date of orders:	8 September 2022
Decision date:	08 September 2022
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The offender is convicted. 2 Taking into account the matters on the s 16BA schedule, I impose a term of imprisonment of 5 years to date from 8 June 2021 and expire on 27 June 2026. I fix a non-parole period of 3 years that will expire on 7 June 2024. The offender will be eligible to be released on parole on 7 June 2024.
Catchwords:	CRIME — Drug offences — Commonwealth offences — Traffic controlled drug
Legislation Cited:	Commonwealth Criminal Code Crimes Act 1914
Cases Cited:	Bugmy v The Queen (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 Rv Nassir [2020] NSWCCA 88 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 (Crown) Brett Anthony Smith (Offender)
Representation:	Counsel: A Gauja (Crown) S Buchen SC (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Benjamin and Leonardo Criminal Defence Lawyers (Offender)
File Number(s):	2021/165113
Publication restriction:	None