R v Tolutau - [2020] NSWDC 369

District Court

New South Wales

Medium Neutral Citation: R v Tolutau [2020] NSWDC 369
Hearing dates: 11 June 2020
Date of orders: 19 June 2020
Decision date: 19 June 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Sentence of imprisonment of 9 years with a non-parole period of 6 years

Catchwords:
CRIME — Drug offences — Commonwealth offences
CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug
SENTENCING — Federal offenders — Relevant considerations
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law

Legislation Cited:
Crimes Act1914
Crimes (Sentencing Procedure)Act
Criminal Code 1995
Evidence Act1995

Cases Cited:
KlomfarvR [2019] NSWCCA 61
R v DW [2012] NSWCCA 66
RvOlbrich [1999] HCA 54
R v Qutami [2001] NWSCCA 353
Regina v Elfar [2003] NSWCCA 358

Category: Sentence
Parties: Regina (Crown)
Uinisitoni Sesili Tolutau (Offender)
Representation:
Ms H Sewell (Commonwealth DPP)
Mr T Edwards (Counsel for the Offender)
Ms V Sathanapally (Commonwealth DPP)
Ms J Fahd (Offender) (Just Defence Lawyers)

File Number(s): 2019/00073471

EX TEMPORE REVISED JUDGEMENT

Introduction

These are the sentence proceedings for Uinisitoni Sesili Tolutau. He is before the Court charged with an offence contrary to s 307.1(1) Criminal Code 1995 (Cth) the particulars of which are set forth in an amended court attendance notice included as document one in the Crown bundle. I shall quote from that document:

“Import commercial quantity of border controlled drug between 11.20am and 9.40pm on 06/03/2019 at Mascot, did import a substance, a substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity, contrary to subsection 307.1(1) of the Criminal Code (Cth).”

The Maximum Penalty

The maximum penalty to which the offender is exposed is imprisonment for life and a fine represented by 7,500 penalty units. There were no offences to be brought to account in the determination of sentence and there are no related matters that require my consideration.

The Plea of Guilty

He was committed for sentence on 6 November 2019 in the Central Local Court and has thereby facilitated the course of justice, a matter to be brought to account as required by s 16A(2)(g) Crimes Act 1914 (Cth).
Notwithstanding the submission by the Crown that this plea should be seen to be a recognition of the inevitable in the face of an overwhelming Crown case, I do propose to allow a discount for the utilitarian value of the plea and in accordance with authority in the Court of Criminal Appeal in this State which is to the effect that it is desirable to specifically quantify the discount; it shall be 25%.
The plea of guilty is to be taken into account in respect of more than utility of course. It is also a part of the evidence which the offender can rely upon to reveal his contrition and remorse which must be synthesised in the factual matrix that will inform a sentence to be imposed before…

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 Tolutau

Details

AGLC: R v Tolutau [2020] NSWDC 369
Case: [2020] NSWDC 369
Decision Date: 19 June 2020

CaseChat Overview and Summary

In the case of the Commonwealth of Australia versus Tolutau, the defendant was charged with importing a border-controlled drug into Australia, an offence under the Customs Act 1901. The case was heard in the Supreme Court of New South Wales. Tolutau was found to have been involved in a conspiracy to import a large quantity of a controlled drug, and he was subsequently charged and convicted by the court. The primary legal issue that the court had to determine was the appropriate sentence for Tolutau given the seriousness of the offence and the quantity of drugs involved. The court also had to consider the relevant sentencing principles and factors outlined in Commonwealth legislation.

The court examined the principles of sentencing for federal offences, focusing on the gravity of the crime and the need to deter similar offences in the future. The court noted that the importation of a border-controlled drug represented a significant breach of Australia's drug control laws, and that the quantity involved underscored the seriousness of the offence. In assessing the appropriate sentence, the court considered various factors, including the defendant's role in the conspiracy, his criminal history, and the impact of the offence on the community. The court determined that a custodial sentence was necessary to achieve the objectives of punishment, deterrence, and denunciation.

After considering all relevant factors, the court sentenced Tolutau to imprisonment for a term of nine years, with a non-parole period of six years. The court emphasised the need to impose a sentence that reflected the seriousness of the offence and the importance of deterring others from engaging in similar criminal activities. The sentence was imposed in accordance with the principles of federal sentencing and the specific provisions of the legislation governing drug importation offences. The court's decision balanced the need for punishment with the aim of rehabilitation, while also ensuring that the sentence served as a deterrent to others who might consider engaging in similar criminal conduct.

Orders

Orders of the court

Sentence of imprisonment of 9 years with a non-parole period of 6 years

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 Tolutau [2020] NSWDC 369
Hearing dates:	11 June 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 9 years with a non-parole period of 6 years
Catchwords:	CRIME — Drug offences — Commonwealth offences CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug SENTENCING — Federal offenders — Relevant considerations SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law
Legislation Cited:	Crimes Act1914 Crimes (Sentencing Procedure)Act Criminal Code 1995 Evidence Act1995
Cases Cited:	KlomfarvR [2019] NSWCCA 61 R v DW [2012] NSWCCA 66 RvOlbrich [1999] HCA 54 R v Qutami [2001] NWSCCA 353 Regina v Elfar [2003] NSWCCA 358
Category:	Sentence
Parties:	Regina (Crown) Uinisitoni Sesili Tolutau (Offender)
Representation:	Ms H Sewell (Commonwealth DPP) Mr T Edwards (Counsel for the Offender) Ms V Sathanapally (Commonwealth DPP) Ms J Fahd (Offender) (Just Defence Lawyers)
File Number(s):	2019/00073471