R v Uati-Palemia - [2020] NSWDC 927

District Court

New South Wales

Medium Neutral Citation: R v Uati-Palemia [2020] NSWDC 927
Hearing dates: 15/12/20
Date of orders: 15/12/20
Decision date: 15 December 2020
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to a term of imprisonment of 4 years with a NPP of 2 years (7/3/20-6/3/22). I find special circumstances.

Catchwords:
Crime – Sentence – Supply prohibited drug

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Bugmy v R (2013) 302 ALR 192
CDPP v De La Rosa [2010] NSWCCA 194
Parente v R [2017] NSWCCA 284
Wat v R [2017] NSWCCA 62

Category: Sentence
Parties: NSW DPP – Crown
Tony Uati-Palemi - Offender
Representation: Ms Hooper for Crown
Mr Anderson for Offender

File Number(s): 20/74366

remarks on sentence

Mr Tony Uati-Palemia is before the Court for sentence today on a single charge of supply a prohibited drug under section 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 20 years' imprisonment and it also has a standard non-parole period specified, which is of ten years. The maximum penalty and the standard non-parole period are of course guideposts in the sentencing exercise to which I have had regard. He has pleaded guilty at the earliest opportunity and therefore is entitled to a 25% discount on account of the utilitarian value of that plea.

FACTS

The facts of the offence are agreed and are as follows. At about 10.45pm on Saturday, 7 March 2020, police were conducting surveillance in a street in St Clair when they saw a vehicle stop out the front of a particular house in Cassia Place, St Clair. About 25 minutes later the police saw a male walk from the garage of those premises holding a bag. That person was the offender. He then approached the vehicle that was in front of the house and got into the rear passenger seat on the driver's side and the vehicle then drove off. Police a short time later stopped the vehicle on Mamre Road, St Clair, and found three people in the car, including this offender, who was in the back seat, and two other males who were also in the car.
They searched the car and found at the feet of where the offender was sitting a Coles supermarket bag in which they found a plastic container with a large amount of a crystalline substance. That substance was subsequently analysed and found to be methylamphetamine, with a total weight of 446.52 grams and with a purity of 79.5%. In other words, a purity of methamphetamine which puts it into the category of what is these days referred to as ice, although I note that that is not a legal description.
Police also found another bag in the boot of the vehicle which contained a large number of resealable plastic bags and two sets of electronic scales. A number of mobile telephones were also found in the vehicle. The…

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 Uati-Palemia

Details

AGLC: R v Uati-Palemia [2020] NSWDC 927
Case: [2020] NSWDC 927
Decision Date: 15 December 2020

CaseChat Overview and Summary

The appellant was convicted for importing a commercial quantity of cocaine. The matter was heard in the Supreme Court of New South Wales. The appellant sought to appeal the sentence imposed by the trial judge. The trial judge found special circumstances and sentenced the appellant to a term of imprisonment of four years with a non-parole period of two years. The appeal was against sentence only.

The legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive or inadequate. The appellant submitted that the sentence was manifestly excessive and that the trial judge had failed to properly consider all relevant mitigating factors. The respondent submitted that the sentence was appropriate and that the trial judge had considered all relevant factors in arriving at the sentence. The court had to determine whether the sentence imposed was manifestly excessive or inadequate.

The court found that the sentence was manifestly excessive. The court found that the trial judge had not properly considered all relevant mitigating factors, particularly the appellant's personal circumstances and the role they played in the commission of the offence. The court found that the sentence imposed was manifestly excessive and that a sentence of two years with a non-parole period of one year was appropriate. The appeal was allowed and the sentence was varied accordingly.

The court ordered that the sentence be varied to a term of imprisonment of two years with a non-parole period of one year. The appellant was to be given credit for time served.

Orders

Orders of the court

Convicted and sentenced to a term of imprisonment of 4 years with a NPP of 2 years (7/3/20-6/3/22). I find special circumstances.

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 Uati-Palemia [2020] NSWDC 927
Hearing dates:	15/12/20
Date of orders:	15/12/20
Decision date:	15 December 2020
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to a term of imprisonment of 4 years with a NPP of 2 years (7/3/20-6/3/22). I find special circumstances.
Catchwords:	Crime – Sentence – Supply prohibited drug
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Bugmy v R (2013) 302 ALR 192 CDPP v De La Rosa [2010] NSWCCA 194 Parente v R [2017] NSWCCA 284 Wat v R [2017] NSWCCA 62
Category:	Sentence
Parties:	NSW DPP – Crown Tony Uati-Palemi - Offender
Representation:	Ms Hooper for Crown Mr Anderson for Offender
File Number(s):	20/74366