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R v Swift

R v Swift

Case [2023] NSWDC 486 25 August 2023

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District Court

New South Wales

Medium Neutral Citation: R v Swift [2023] NSWDC 486
Hearing dates: 25 August 2023
Date of orders: 25 August 2023
Decision date: 25 August 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence imprisonment for 3 years and 6 months with a non-parole period of 2 years 3 months

Catchwords:
CRIME — Drug offences — Supply prohibited drug — Not less than commercial quantity — Participate in criminal group
SENTENCING — Relevant factors on sentence — Form 1 offences — Plea of guilty — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Drug addiction — Childhood trauma — Mental health — Pro-social support — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dungay v R [2020] NSWCCA 209
Hamzy v R (1994) 74 A Crim R 341
Jadron v R [2015] NSWCCA 217
Lloyd v R [2022] NSWCCA 18
Nasrallah v R [2021] NSWCCA 207
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Blair (2005) 152 A Crim R 462
R v Gavel [2014] NSWCCA 56
R v Millwood [2012] NSWCCA 2
R v MJB [2014] NSWCCA 195
R v Shi [2004] NSWCCA 135
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Tuki (No. 4) [2013] NSWSC 1864
Stanton v R [2021] NSWCCA 123

Texts Cited:
W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1
W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497

Category: Sentence
Parties: Morgan Swift (the offender)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
S Fraser (for the offender)
Solicitors:
A Hughes for Public Prosecutions (NSW) (Crown)
Morrisons Law (for the offender)

File Number(s): 2021/254880

JUDGMENT – EX TEmpore revised

Introduction

Morgan Swift appeared in Court by video link, from the Mid North Coast Correctional Centre today. Through his counsel, Mr Fraser, he adhered to pleas that he had entered in the Local Court to offences of Participating in a Criminal Group pursuant to s 93T Crimes Act 1900 (NSW) and Supplying Not Less than the Commercial Quantity of cocaine pursuant to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW).
He also asked that I take into account, when I sentence him for the supply offence, two matters on a Crimes (Sentencing Procedure) Act 1999 (NSW)…

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 Swift

Details

AGLC: R v Swift [2023] NSWDC 486
Case: [2023] NSWDC 486
Decision Date: 25 August 2023

CaseChat Overview and Summary

The case of R v Swift involved the defendant, Swift, who was charged with drug offences related to the supply of a prohibited drug in a quantity that was not less than commercial. The case was heard in a higher court in Australia, where the defendant entered a plea of guilty to the charges. The legal issues that the court had to address included determining the objective seriousness of the offence, as well as the subjective considerations that should be taken into account in sentencing. The court had to consider the relevant factors for sentencing under Form 1 offences, as well as the defendant's drug addiction, childhood trauma, mental health, pro-social support, and any other special circumstances that may be relevant.

The court began by assessing the objective seriousness of the offence. It found that the defendant had participated in a criminal group and had supplied a significant quantity of a prohibited drug. The court also considered the defendant's plea of guilty as a mitigating factor. In terms of subjective considerations, the court found that the defendant had a history of drug addiction and had experienced childhood trauma. The court also noted that the defendant had mental health issues and had received pro-social support. The court found that these factors were relevant to the sentencing process and should be taken into account.

After considering all the relevant factors, the court determined that the appropriate sentence for the defendant was imprisonment for a total of three years and six months, with a non-parole period of two years and three months. The court emphasised the importance of using an instinctive synthesis approach in sentencing, where all the relevant factors are considered holistically. The court also noted that the sentence should be proportionate to the objective seriousness of the offence, while also taking into account any mitigating factors. Overall, the court found that the sentence imposed was appropriate and reflected the circumstances of the case.

The court's final orders were that the defendant be sentenced to imprisonment for a total of three years and six months, with a non-parole period of two years and three months. The court emphasised the importance of the defendant receiving appropriate support and treatment during their time in prison to address their drug addiction and mental health issues. The court also noted that the defendant's childhood trauma and pro-social support were relevant factors that should be taken into account in any future sentencing decisions.

Orders

Orders of the court

Aggregate sentence imprisonment for 3 years and 6 months with a non-parole period of 2 years 3 months

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

R v Swift [2023] NSWDC 486

Most Recent Citation

R v Bojlevski [2024] NSWDC 415

Cases Citing This Decision

R v Bojlevski [2024] NSWDC 415
Citation 1 (Para 17)

…red on the one day, context is not ignored. The group was a small one and only two individuals were involved. I previously sentenced Swift: R v Swift [2023] NSWDC 486.…

See all citing cases →

Cases Cited

Lloyd v R [2022] NSWCCA 18
Citation 1 (Para 44)

…connection with the offending before having regard to what are often called Bugmy factors: Dungay v R [2020] NSWCCA 209 at [136] to [153]; Lloyd v R [2022] NSWCCA 18. But, as the Court said in Dungay , while these matters must be given full weight that does not mean that moral culpability must be reduced.…
Nasrallah v R [2021] NSWCCA 207
Citation 2 (Para 2)

…Childhood trauma such as being the victim of a sexual assault: Nasrallah v R [2021] NSWCCA 207; and…
Stanton v R [2021] NSWCCA 123
Citation 3 (Para 45)

…can have a profound and highly detrimental impact on a child so assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67]; Nasrallah v R at [100] to [102]. Such matters are relevantly taken into account when one is punishing child sex offenders and it is appropri…
Dungay v R [2020] NSWCCA 209
Citation 4 (Para 44)

…ecessary to establish the existence of a causal connection with the offending before having regard to what are often called Bugmy factors: Dungay v R [2020] NSWCCA 209 at [136] to [153]; Lloyd v R [2022] NSWCCA 18. But, as the Court said in Dungay , while these matters must be given full weight that does not mean th…
Jadron v R [2015] NSWCCA 217
Citation 5 (Para 16)

…e rather than a number which could be accumulated, but it is an appropriate way of dealing with the matter: Hamzy v R(1994) 74 A Crim R 34; Jadron v R[2015] NSWCCA 217.…
R v MJB [2014] NSWCCA 195
Citation 6 (Para 45)

…not double count those matters but I do note that sexual assaults can have a profound and highly detrimental impact on a child so assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67]; Nasrallah v R at [100] to [102]. Such matters are relevantly taken into a…
R v Gavel [2014] NSWCCA 56
Citation 7 (Para 45)

…do note that sexual assaults can have a profound and highly detrimental impact on a child so assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67]; Nasrallah v R at [100] to [102]. Such matters are relevantly taken into account when one is punishing child s…
R v Tuki (No. 4) [2013] NSWSC 1864
Citation 8 (Para 29)

…edge of the acts being perpetrated by others and he took actions such as obtaining cars and safe houses to facilitate those actions: R v Tuki (No. 4) [2013] NSWSC 1864. Again, a serious example of an offence of this type.…
Bugmy v The Queen [2013] HCA 37
Citation 9 (Para 1)

…The effects of childhood deprivation: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;…
R v Millwood [2012] NSWCCA 2
Citation 10 (Para 44)

…Evidence of a deprived background is a relevant factor on sentencing: Bugmy v The Queen ; R v Millwood [2012] NSWCCA 2 at [69]. The prevailing view is that it is not necessary to establish the existence of a causal connection with the offending before having regard to what are often called Bugmy factors: Dungay v…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 11 (Para 3)

…Mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].…
R v Shi [2004] NSWCCA 135
Citation 12 (Para 26)

…There is no suggestion he was the principal or was making the huge profits many tend to make from such operations: R v Shi [2004] NSWCCA 135; R v Blair (2005) 152 A Crim R 462. But he was active, persistent, and willing.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 13 (Para 8)

…ence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 [39] to [42].…
R v Simpson [2001] NSWCCA 534
Citation 14 (Para 50)

…r the reasons outlined. But the minimum term must still reflect and meet all the purposes of sentencing, including appropriate punishment: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59]. The community should understand that offenders who receive supervision are less likely to reoffend in as serious a manner than…
Regina v Simpson [1999] NSWCCA 367
Citation 15 (Para 50)

…ned. But the minimum term must still reflect and meet all the purposes of sentencing, including appropriate punishment: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59]. The community should understand that offenders who receive supervision are less likely to reoffend in as serious a manner than those who are…
Pearce v The Queen [1998] HCA 57
Citation 16 (Para 28)

…bjective seriousness, but which also might qualify as factors to be taken into account pursuant to s 21A(2): Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.…

Legislation Cited

Criminal Procedure Act 1986 (NSW) 166
2 mentions (from Para 3)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Swift [2023] NSWDC 486
Hearing dates:	25 August 2023
Date of orders:	25 August 2023
Decision date:	25 August 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence imprisonment for 3 years and 6 months with a non-parole period of 2 years 3 months
Catchwords:	CRIME — Drug offences — Supply prohibited drug — Not less than commercial quantity — Participate in criminal group SENTENCING — Relevant factors on sentence — Form 1 offences — Plea of guilty — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Childhood trauma — Mental health — Pro-social support — Special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Dungay v R [2020] NSWCCA 209 Hamzy v R (1994) 74 A Crim R 341 Jadron v R [2015] NSWCCA 217 Lloyd v R [2022] NSWCCA 18 Nasrallah v R [2021] NSWCCA 207 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Blair (2005) 152 A Crim R 462 R v Gavel [2014] NSWCCA 56 R v Millwood [2012] NSWCCA 2 R v MJB [2014] NSWCCA 195 R v Shi [2004] NSWCCA 135 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Tuki (No. 4) [2013] NSWSC 1864 Stanton v R [2021] NSWCCA 123
Texts Cited:	W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1 W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497
Category:	Sentence
Parties:	Morgan Swift (the offender) Director of Public Prosecutions (the Crown)
Representation:	Counsel: S Fraser (for the offender) Solicitors: A Hughes for Public Prosecutions (NSW) (Crown) Morrisons Law (for the offender)
File Number(s):	2021/254880