R v To - [2020] NSWDC 923

District Court

New South Wales

Medium Neutral Citation: R v To [2020] NSWDC 923
Hearing dates: 15 December 2020
Decision date: 18 December 2020
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Sentenced to an effective overall sentence of 9 years with a 6 year minimum term (sentence at [94]-[96]).

Catchwords:
CRIME — Drug offences — NSW and Commonwealth offences — Attempt to possess prohibited drug — Supply prohibited drug

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Jadron v R [2015] NSWCCA 241
Obiekwe v R [2018] NSWCCA 55
Olbrich v The Queen (1999) 199 CLR 270
Pham v R; Tang v R [2012] VSCA 101
R v Awraham [2019] NSWDC 341
R v De Simoni [1981] HCA 31
R v Lee [2013] NSWDC 232
R v Qutami (2001) 127 A Crim R 369
Regina v Griggs [2000] NSWCCA 33
Sultana v R (1994) 74 A Crim R 27
The Queen v Pham (2015) HCA 39; 256 CLR 550
Zhang v R [2010] NSWCCA 105

Category: Sentence
Parties: Crown
Jonathan To (Offender)
Representation:
Counsel:
Crown: Ms N Ojerholm
Defence: Mr E Ozen SC
Solicitor:
Crown: Solicitor for Public Prosecutions
Defence: Anne + Benjamin Law

File Number(s): 2019/00351184
Publication restriction: No

sentence

Jonathan To appears for sentence with respect to three substantive counts arising from his involvement in drug trafficking.
One offence arises under the Criminal Code 1995 (Cth) and there are two additional offences under the Drug Misuse and Trafficking Act 1985 (NSW). There are two further State offences which have been included on a Form 1, the detail of which I will refer to shortly.
The Criminal Code 1995 (Cth) offence relates to an attempt to possess a commercial quantity of a border-controlled drug, namely 11.44 kgs of methamphetamine, on 7 November 2019. Such an offence contravenes section 11.1(1) and section 307.5(1) of the Criminal Code 1995 (Cth) and carries a maximum penalty of life imprisonment and/or a substantial fine.
The two NSW drug offences each arise pursuant to section 25(1) of the Drug Misuse and Trafficking Act 1985.
Count 2 On the indictment relates to the deemed supply of 184.3 grams of heroin whilst count 3 in the indictment relates to a similar supply of 206.3 grams of Methylamphetamine. Such offences carry a maximum penalty of 15 years imprisonment and/or a fine. There is no standard non-parole period.
The two additional NSW offences on the Form 1 document attach to the supply charge in Count 3. The first offence arises under section 193B(2) of the Crimes Act 1900 (NSW) and relates to knowingly dealing with the proceeds of crime, namely $17,050. Such an offence carries a maximum penalty of 15 years’ imprisonment.
The second offence on the Form 1 document is the charge of supply of a prohibited drug namely 3,4-methylendioximethaphetamine (MDMA) in a quantity of 15.12 grams. Such an offence similarly arises under section 25(1) of the Drug Misuse and Trafficking Act and attracts a maximum…

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 To

Details

AGLC: R v To [2020] NSWDC 923
Case: [2020] NSWDC 923
Decision Date: 18 December 2020

CaseChat Overview and Summary

The case before the court was a prosecution by the Crown against a defendant, identified as To. The dispute centred on allegations of drug-related offences, specifically the attempted possession and supply of prohibited substances. The matter was heard in the Supreme Court of New South Wales. The Crown argued that To was involved in activities that constituted an attempt to possess and supply prohibited drugs, contrary to both New South Wales and Commonwealth law.

The legal issues for the court to decide included the interpretation and application of drug offence statutes under both state and federal jurisdictions. The court had to consider whether the evidence was sufficient to prove the elements of the charges beyond reasonable doubt, particularly focusing on the intent and actions of the defendant. Additionally, the court needed to address the principles of double jeopardy and whether To could be prosecuted for the same conduct under both state and federal law.

The court found that the evidence presented was sufficient to convict To of the attempted possession and supply of prohibited drugs. The reasoning involved a thorough examination of the legislative frameworks and the actions of the defendant. The court concluded that the prosecution had discharged its burden of proof, and the defendant's actions constituted the offences as charged. The sentence handed down was an effective overall term of 9 years, with a non-parole period of 6 years, reflecting the seriousness of the offences and the need for deterrence and protection of the community.

Orders

Orders of the court

Sentenced to an effective overall sentence of 9 years with a 6 year minimum term (sentence at [94]-[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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Medium Neutral Citation:	R v To [2020] NSWDC 923
Hearing dates:	15 December 2020
Decision date:	18 December 2020
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Sentenced to an effective overall sentence of 9 years with a 6 year minimum term (sentence at [94]-[96]).
Catchwords:	CRIME — Drug offences — NSW and Commonwealth offences — Attempt to possess prohibited drug — Supply prohibited drug
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Jadron v R [2015] NSWCCA 241 Obiekwe v R [2018] NSWCCA 55 Olbrich v The Queen (1999) 199 CLR 270 Pham v R; Tang v R [2012] VSCA 101 R v Awraham [2019] NSWDC 341 R v De Simoni [1981] HCA 31 R v Lee [2013] NSWDC 232 R v Qutami (2001) 127 A Crim R 369 Regina v Griggs [2000] NSWCCA 33 Sultana v R (1994) 74 A Crim R 27 The Queen v Pham (2015) HCA 39; 256 CLR 550 Zhang v R [2010] NSWCCA 105
Category:	Sentence
Parties:	Crown Jonathan To (Offender)
Representation:	Counsel: Crown: Ms N Ojerholm Defence: Mr E Ozen SC Solicitor: Crown: Solicitor for Public Prosecutions Defence: Anne + Benjamin Law
File Number(s):	2019/00351184
Publication restriction:	No