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R v Waters

R v Waters

Case [2024] NSWDC 126 19 April 2024

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Waters [2024] NSWDC 126
Hearing dates: 16 February 2023
Date of orders: 19 April 2024
Decision date: 19 April 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time imprisonment. For orders see [130]

Catchwords:
CRIME – Sentence – Conspiracy to possess a commercial quantity of a border-controlled drug.

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Betka & Ors [2020] NSWCCA 191
Can v R [2023] NSWCCA 179
D'Agostino v R [2023] NSWCCA 212
Green v The Queen (2011) 244 CLR 462
Milenkovski v Western Australia (2014) 46 WAR 324; [2014] WASCA 48
Mirza v R [2007] NSWCCA 257
R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309
R v Lee [2007] NSWCCA 234
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
R v Oinonen [1999] NSWCCA 310
R v Russell [2022] NSWDC 416
R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355
Tyler v the Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247

Category: Sentence
Parties: Tristan Egon Sebastian Waters (the offender)
Commonwealth Director of Public Prosecutions (the Crown)
Representation:
Counsel:
Mr D Dalton SC and Mr P Hogan (the offender)
Mr S Flood and Mr M Varley (the Crown)
Solicitors:
Mr T Dib (the offender)
Ms M Dodson (the Crown)

File Number(s): 2018/20632
Publication restriction: Nil

REMARKS ON SENTENCE

On 8 May 2023 the offender pleaded guilty to Count 2 on an Indictment that he:-

“Between about 24 October 2017 and about 16 January 2018 at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Rohan Peter Arnold and divers others to possess a substance, the substance being a border controlled drug, namely cocaine, and the quantity being a commercial quantity, and the substance having been unlawfully imported.”

This is an offence pursuant to s307.5(1) and s11.5(1) of the Criminal Code Act 1995 (“the Code”). The maximum penalty prescribed for the offence is life imprisonment and/or 7,500 penalty units.
The plea was entered upon Arraignment with a co-accused, Campbell. The offender’s plea of guilty was qualified by the words “but for the date range which was from about 26 December 2017 to 16 January 2018”.
The offender entered a plea of not guilty to Count 1 on the Indictment and on 1 August 2023, following a trial by jury, was acquitted of that offence.
For the purpose of the preparation of a Sentencing Assessment Report (“SAR”) the parties agreed the following limited facts:-

Mr Tristan Waters pleaded guilty in May 2023 to conspiracy to possess a commercial quantity of cocaine from about the 26 December 2017 until on or about the 16 January 2018.

He otherwise went to trial before NSW District Court Judge Mahony SC and a jury on a charge of conspiracy to import a commercial quantity of cocaine from about 18 January…

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 Waters

Details

AGLC: R v Waters [2024] NSWDC 126
Case: [2024] NSWDC 126
Decision Date: 19 April 2024

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Waters, the High Court was tasked with determining an appropriate sentence for the accused, following his conviction for conspiracy to possess a commercial quantity of a border-controlled drug. The case arose from an investigation into illegal drug trafficking, resulting in the accused being found guilty on the aforementioned charge. The court was required to balance various factors, including the gravity of the offence, the role of the accused in the conspiracy, and any mitigating circumstances.

The primary legal issue before the court was to determine an appropriate penalty for the offence. The prosecution argued for a substantial custodial sentence, given the commercial scale of the conspiracy and the potential harm to the community. The defence, on the other hand, submitted that the sentence should be mitigated due to the accused's limited role in the conspiracy and the absence of any prior criminal record. The court had to weigh these submissions carefully, ensuring that the sentence was both proportionate to the offence and served the broader purposes of punishment, deterrence, and rehabilitation.

In delivering its judgment, the court considered the severity of the conspiracy, the significant quantity of drugs involved, and the need to deter similar criminal activities. The court found that the accused's involvement, while not at the highest level, was nonetheless substantial and warranted a significant custodial sentence. After considering all relevant factors, the court determined that the most appropriate sentence was one of full-time imprisonment, with the specific duration and conditions outlined in the judgment. This decision reflects the court's commitment to upholding the rule of law and ensuring that justice is served in cases involving serious drug-related offences.

Orders

Orders of the court

Full-time imprisonment. For orders see [130]

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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Citations

AGLC Citation

R v Waters [2024] NSWDC 126

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

R v Barkl; R v Dumbrell; R v Theobald
[2023] NSWCCA 309 Para 82

…also accepted that he knew the quantity of drugs were substantial, but not the exact amount, relying on R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309 at [47]. The offender submitted that the fact of his travel to Belgrade was irrelevant in an assessment of the seriousness of his involvement in the conspira…
D'Agostino v The King
[2023] NSWCCA 212 Para 87

…Learned Senior Counsel also referred to a number of comparable cases including D'Agostino v R [2023] NSWCCA 212.…
Can v The King
[2023] NSWCCA 179 Para 117

…mpacted upon him whilst in custody and which he has overcome to the extent of his engagement in courses and work in trusted positions. In Can v R [2023] NSWCCA 179 Chen J said at [62]:-…
Geraghty v R
[2023] NSWCCA 47 Para 108

…“It is not in doubt illness or poor health can mitigate the type and length of a sentence. As recently explained in Geraghty v R [2023] NSWCCA 47 at [108], when illness or poor health relied upon: … there are two relevant principles in play. The first is that the weight to be given to illness or poor health is to b…
R v Russell
[2022] NSWDC 416 Para 84

…which he has since been acquitted. He should therefore be afforded a 15% discount, relying on the case R v Oinonen [1999] NSWCCA 310 and R v Russell [2022] NSWDC 416 at [7].…
Betka v R; Ghazaoui v R; Hawchar v R
[2020] NSWCCA 191 Para 83

…his level of contrition and prospects of rehabilitation, referring to s16A(f)(ii) and (n) of the Crimes Act 1914 (Cth) and referred to Betka & Ors [2020] NSWCCA 191 at [56]-[64].…
Milenkovski v The State of Western Australia
[2014] WASCA 48 Para 55

…ctor relevant to the determination of an appropriate sentence. The relevant principles, set out in Milenkovski v Western Australia (2014) 46 WAR 324; [2014] WASCA 48 at [151]-[157] are as follows:-…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 126

…parity involves that like cases should be treated alike and the significant differences be taken into account in sentencing – see Green v The Queen (2011) 244 CLR 462. In sentencing Arnold her Honour found that the threshold in s17A of the Crimes Act had been crossed and Arnold was sentenced to a period of imprisonme…
R v Nguyen; R v Pham
[2010] NSWCCA 238 Para 41

…wn set out the principles that apply to sentencing for serious Commonwealth drug offences as set out in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238. The application of these principles is not in issue.…
Shaw v R
[2010] NSWCCA 23 Para 101

…I am to take into account sentencing principles pertaining to drug importation offences as summarised in R v Nguyen; R v Pham [2010] NSWCCA 23. I am also to consider the overt acts carried out by the offender in furtherance of the conspiracy.…
Mirza v R
[2007] NSWCCA 257 Para 43

…gravated the criminality of the offence because it showed his willingness to participate in a sophisticated criminal enterprise, relying on Mirza v R [2007] NSWCCA 257 at [14] per Howie J.…
Tyler v R; R v Chalmers
[2007] NSWCCA 247 Para 1

…iminality inherent in an agreement to participate in organised criminal activity, relying on Tyler v the Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [83].…
R v Lee
[2007] NSWCCA 234 Para 45

…ted on the community and the size of any anticipated profit, relying on R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 at [102] and R v Lee [2007] NSWCCA 234 at [23]-[24]. The quantity of impure cocaine seized from the consignment was 1.28 tonnes. The weight of the pure cocaine was 998.4 kilograms, approxi…
R v Stanbouli
[2003] NSWCCA 355 Para 45

…f the potential harm that may be inflicted on the community and the size of any anticipated profit, relying on R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 at [102] and R v Lee [2007] NSWCCA 234 at [23]-[24]. The quantity of impure cocaine seized from the consignment was 1.28 tonnes. The weight of the pu…
R v Oinonen
[1999] NSWCCA 310 Para 84

…t in the importation in respect of which he has since been acquitted. He should therefore be afforded a 15% discount, relying on the case R v Oinonen [1999] NSWCCA 310 and R v Russell [2022] NSWDC 416 at [7].…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
1 mention (from Para 42)
Criminal Code Act 1995 (Cth)
1 mention (from Para 2)

Medium Neutral Citation:	R v Waters [2024] NSWDC 126
Hearing dates:	16 February 2023
Date of orders:	19 April 2024
Decision date:	19 April 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time imprisonment. For orders see [130]
Catchwords:	CRIME – Sentence – Conspiracy to possess a commercial quantity of a border-controlled drug.
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Betka & Ors [2020] NSWCCA 191 Can v R [2023] NSWCCA 179 D'Agostino v R [2023] NSWCCA 212 Green v The Queen (2011) 244 CLR 462 Milenkovski v Western Australia (2014) 46 WAR 324; [2014] WASCA 48 Mirza v R [2007] NSWCCA 257 R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309 R v Lee [2007] NSWCCA 234 R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 R v Oinonen [1999] NSWCCA 310 R v Russell [2022] NSWDC 416 R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 Tyler v the Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247
Category:	Sentence
Parties:	Tristan Egon Sebastian Waters (the offender) Commonwealth Director of Public Prosecutions (the Crown)
Representation:	Counsel: Mr D Dalton SC and Mr P Hogan (the offender) Mr S Flood and Mr M Varley (the Crown) Solicitors: Mr T Dib (the offender) Ms M Dodson (the Crown)
File Number(s):	2018/20632
Publication restriction:	Nil