R v Van Der Maas - [2022] NSWDC 666

District Court

New South Wales

Medium Neutral Citation: R v Van Der Maas [2022] NSWDC 666
Hearing dates: 13 April 2022; 4 August 2022
Date of orders: 4 August 2022
Decision date: 04 August 2022
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
Commonwealth
An aggregate term of imprisonment of 6 years, 3 months with a non-parole period of 3 years 5 months.
State offences
A term of imprisonment of 27 months with a non-parole period of 14 months: at [79].

Catchwords:
CRIME — Drug offences — Commonwealth offences — Traffic controlled drug — Money laundering — Dealing with money suspected of being proceeds of crime
CRIME — Drug offences — Supply prohibited drug — Commercial quantity
SENTENCING — Aggravating factors — Financial gain
SENTENCING — Mitigating factors — Duress — Plea of guilty
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Moral culpability — Multiple offences — Objective seriousness
SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Code (Cth)
Drug Misuse and Trafficking Act 1985.

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
Bugmy v The Queen (2013) 249 CLR 571
DPP (Cth) v Merrill (a Pseudonym) [2015] VSCA 52
Du Randt v The Queen [2008] NSWCCA 121
in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Lim v The Queen [2018] VSCA 64
R v Blair [2005] NSWCCA 78
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) 46 NSWLR 346
R v Nguyen; R v Pham [2010] NSWCCA 238
R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394
Tiknius v R [2011] NSWCCA 215

Category: Sentence
Parties:
Regina (Commonwealth Director of Public Prosections)
Beau Van Der Maas (Offender)
Representation:
Mr J Fennel (Solicitor, Commonwealth Director of Public Prosecutions)
Mr A Djemal (Counsel for Offender)

File Number(s): 2020/00279215

Judgment

Beau Van Der Maas, who is now 41 years old, has pleaded guilty to Commonwealth and State offences in relation to his involvement with a drug operation over a short period of time in September 2020. He has been in custody since his arrest on 25 September 2020. It is agreed that, having regard to Commonwealth and State sentencing principles and legislation, a term of fulltime custody is required and it is unnecessary for me to consider any alternatives.
It is clear that an aggregate sentence may be imposed for the Commonwealth offences and a separate sentence for the State offences.
He has pleaded guilty at an early opportunity, in circumstances justifying a 25%discount, pursuant to both State and Commonwealth sentencing regimes.
The offender has been charged with the following Commonwealth offences:

Sequence 5 an offence of trafficking in controlled drugs in excess of the commercial quantity contrary to s 302.2 of…

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 Van Der Maas

Details

AGLC: R v Van Der Maas [2022] NSWDC 666
Case: [2022] NSWDC 666
Decision Date: 04 August 2022

CaseChat Overview and Summary

The appellant, Van Der Maas, was convicted of multiple drug offences and money laundering in the Federal Court of Australia. The charges included the supply of a commercial quantity of a prohibited drug and dealing with money suspected to be the proceeds of crime. The case was heard by the High Court of Australia, which was asked to review the sentence imposed by the lower court.

The central legal issues revolved around the appropriate sentence for the appellant's criminal activities. The court had to consider several factors, including the objective seriousness of the offences, the appellant's moral culpability, the presence of aggravating and mitigating factors, and the need for deterrence. The appellant argued for a reduced sentence based on his plea of guilty, his drug addiction, and mental illness. The prosecution contended for a harsher sentence due to the significant financial gain from the crimes and the commercial scale of the drug supply.

The court held that the appellant's drug addiction and mental illness were significant mitigating factors, but they did not outweigh the aggravating factors, such as the commercial scale of the drug supply and the significant financial gain. The court found that the appellant's actions demonstrated a high degree of moral culpability and that the offences were of considerable seriousness. The sentence imposed by the lower court was considered appropriate, taking into account the need for general and specific deterrence.

The High Court affirmed the sentence imposed by the lower court, with an aggregate term of imprisonment of 6 years and 3 months for the Commonwealth offences, with a non-parole period of 3 years and 5 months. For the state offences, the court imposed a term of imprisonment of 27 months, with a non-parole period of 14 months.

Orders

Orders of the court

Commonwealth

An aggregate term of imprisonment of 6 years, 3 months with a non-parole period of 3 years 5 months.

State offences

A term of imprisonment of 27 months with a non-parole period of 14 months: at [79].

Background

Background to the litigation

Full text does not contain this section.

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 Van Der Maas [2022] NSWDC 666
Hearing dates:	13 April 2022; 4 August 2022
Date of orders:	4 August 2022
Decision date:	04 August 2022
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Commonwealth An aggregate term of imprisonment of 6 years, 3 months with a non-parole period of 3 years 5 months. State offences A term of imprisonment of 27 months with a non-parole period of 14 months: at [79].
Catchwords:	CRIME — Drug offences — Commonwealth offences — Traffic controlled drug — Money laundering — Dealing with money suspected of being proceeds of crime CRIME — Drug offences — Supply prohibited drug — Commercial quantity SENTENCING — Aggravating factors — Financial gain SENTENCING — Mitigating factors — Duress — Plea of guilty SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Moral culpability — Multiple offences — Objective seriousness SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Code (Cth) Drug Misuse and Trafficking Act 1985.
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. Bugmy v The Queen (2013) 249 CLR 571 DPP (Cth) v Merrill (a Pseudonym) [2015] VSCA 52 Du Randt v The Queen [2008] NSWCCA 121 in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Lim v The Queen [2018] VSCA 64 R v Blair [2005] NSWCCA 78 R v Fernando (1992) 76 A Crim R 58 R v Henry (1999) 46 NSWLR 346 R v Nguyen; R v Pham [2010] NSWCCA 238 R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394 Tiknius v R [2011] NSWCCA 215
Category:	Sentence
Parties:	Regina (Commonwealth Director of Public Prosections) Beau Van Der Maas (Offender)
Representation:	Mr J Fennel (Solicitor, Commonwealth Director of Public Prosecutions) Mr A Djemal (Counsel for Offender)
File Number(s):	2020/00279215