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R v Webster

R v Webster

Case [2022] NSWDC 554 10 May 2022

Sentencing

Drug Offences

Personal Considerations

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Webster [2022] NSWDC 554
Hearing dates: 5-8, 11-14, 19-22, 28-29 April 2022, 9-10 May 2022
Date of orders: 10 May 2022
Decision date: 10 May 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See par [41].

Catchwords:
CRIME – SENTENCE – DRUG OFFENCES – Finding of a statutory alternative to a count on the indictment – The Defendant already served a relatively significant term of imprisonment on remand – The inexpediency of further punishment – Favourable antecedents and personal considerations of the Defendant.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act1985 (NSW)
Drug Misuse and Trafficking Regulation 2011 (NSW)

Cases Cited:
Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
R v Leung; R v Webster(No. 1) [2022] NSWDC 137
R v Leung; R v Webster (No. 2) [2022] NSWDC 138
R v Leung; R v Webster (No. 3) [2022] NSWDC 139
R v Leung; R v Webster (No. 4) [2022] NSWDC 553
R v Mauger [2012] NSWCCA 51
R v Paris [2001] NSWCCA 83
Regina v Van Nam Nguyen [2002] NSWCCA 183

Texts Cited:
Nil.

Category: Sentence
Parties: R – Crown
Defendant – Cameron Stewart Webster
Representation: Counsel:
Crown – Nightingale, K.
Defendant – Ramrakha, T.
Solicitors:
Crown – Ms Aresh of the Office of the Director of Public Prosecutions
Defendant – LegalAid

File Number(s): 2019/276599
Publication restriction: Nil.

Judgment

Background

HIS HONOUR: For further background of this case, see my decisions in R v Leung; R v Webster(No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, and R v Leung; R v Webster (No. 4) [2022] NSWDC 553.
On Tuesday 5 April 2022 I commenced a criminal trial by Judge Alone. There were two accused, Ms Canny Leung (“the co-accused”) and Mr Cameron Stewart Webster (“the Defendant”).
The indictment presented contained eight counts. The first and eighth counts were solely against the Defendant, the second and third counts were solely against the co-accused, the fourth, fifth, sixth and seventh counts were against each of the Defendant and the co-accused. This judgment deals solely with the counts alleged against the Defendant.
On Friday 29 April 2022, I found the Defendant not guilty on count one, not guilty on count four, not guilty as charged on count five but guilty of a statutory alternative count of supply of a traffickable quantity of the prohibited drug 3,4‑methylenedioxymethylamphetamine (“MDMA”). I also found the Defendant not guilty in respect of counts six, seven, and eight. Earlier today, the Defendant pleaded guilty to three relative minor charges that were disclosed on a s 166 certificate. He now stands for sentence for the offence of which I found him guilty and for the three minor offences referred to on the s 166 certificate…

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 Webster

Details

AGLC: R v Webster [2022] NSWDC 554
Case: [2022] NSWDC 554
Decision Date: 10 May 2022

CaseChat Overview and Summary

The case of R v Webster involved the defendant, who had been charged with drug-related offences. The dispute in this case centred on the appropriate sentence to be imposed on the defendant, given his criminal history, the time already served on remand, and his personal circumstances. The matter was heard in the relevant court of appeal.

The central legal issues that the court had to address were whether the imposition of a significant custodial sentence was justified, considering the defendant's prior good character and the time already served on remand, and whether the court should consider a statutory alternative to the offence as charged. The court needed to weigh the need for deterrence and denunciation against the principles of proportionality and the avoidance of unnecessary punishment.

The court's reasoning focused on the balance between the seriousness of the offence and the personal circumstances of the defendant. The court recognised that the defendant had already served a significant term of imprisonment on remand and had favourable antecedents. The court also considered the inexpediency of further punishment for the defendant, given his personal situation and the potential for rehabilitation. The court concluded that the imposition of a custodial sentence would not serve the interests of justice in this case and opted for a statutory alternative to the offence as charged. This decision was based on the principle that the punishment should fit the crime and the offender, taking into account all relevant factors.

The final orders of the court, as detailed in paragraph [41], involved the defendant being discharged without conviction in relation to the drug offences, with the imposition of a statutory alternative to the offence as charged. The defendant was also subject to specific conditions and requirements, such as attending rehabilitation programs and complying with any other terms imposed by the court.

Orders

Orders of the court

See par [41].

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.

Actions

Citations

R v Webster [2022] NSWDC 554

Most Recent Citation

R v Edigarov [2001] NSWCCA 436

Cases Citing This Decision

R v Leung; R v Webster (No. 5) [2022] NSWDC 556
Citation 1 (Para 1)

…; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, R v Leung; R v Webster (No. 4) [2022] NSWDC 553, R v Webster [2022] NSWDC 554, and R v Leung [2022] NSWDC 555.…
R v Edigarov [2001] NSWCCA 436
Citation 2

…le leniency to an offender do not do them any favour: In that regard see the observations of Mason P in R v Horne (1999) NSWCCA 391 and of Grove J in R v Webster (1999) NSWCCA 313.…

See all citing cases →

Cases Cited

R v Leung; R v Webster (No. 4) [2022] NSWDC 553
Citation 1 (Para 1)

…2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, and R v Leung; R v Webster (No. 4) [2022] NSWDC 553.…
R v Leung; R v Webster (No. 3) [2022] NSWDC 139
Citation 2 (Para 1)

…see my decisions in R v Leung; R v Webster (No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, and R v Leung; R v Webster (No. 4) [2022] NSWDC 553.…
R v Leung; R v Webster (No. 1) [2022] NSWDC 137
Citation 3 (Para 1)

…HIS HONOUR: For further background of this case, see my decisions in R v Leung; R v Webster (No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, and R v Leung; R v Webster (No. 4) [2022] NSWDC 553.…
R v Leung; R v Webster (No. 2) [2022] NSWDC 138
Citation 4 (Para 1)

…HIS HONOUR: For further background of this case, see my decisions in R v Leung; R v Webster (No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, and R v Leung; R v Webster (No. 4) [2022] NSWDC 553.…
R v Mauger [2012] NSWCCA 51
Citation 5 (Para 13)

…The Defendant, through his counsel, asks me to deal with the Defendant under s 10(1)(a). In R v Mauger [2012] NSWCCA 51 the offender pleaded guilty to supplying 5.13 grams, or 20 tablets, of MDMA, contrary to s 25 (1) of the Drug Misuse and Trafficking Act 1985 . In other words, Mr Mauger pleaded guilty to the offe…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 6 (Para 1)

…urisdiction under s 5D to decline to interfere with a sentence even though the sentence was erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 283 ALR 1 at [1].…
Hili v The Queen [2010] HCA 45
Citation 7 (Para 2)

…misapplication of principle even though it may not be specifically identifiable in the statement of reasons: see Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]; Dinsdale v The Queen at [58].…
R v Stephenson [2010] NSWSC 779
Citation 8 (Para 4)

…ly to avoid the operation of some other legislative provision that is otherwise applicable: R v Fing (unreported NSWCCA 25 July 1994); R v Stephenson [2010] NSWSC 779 at [66].” Perhaps to egg the pudding somewhat, learned counsel for the Defendant also referred me to Regina v Van Nam Nguyen [2002] NSWCCA 183 where…
Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
Citation 9 (Para 5)

…20 years. I was also referred by counsel for the Defendant to R v Paris [2001] NSWCCA 83 and to Hoffenberg v The District Court of New South Wales [2010] NSWCA 142.…
SBF v R [2009] NSWCCA 231
Citation 10 (Para 2)

…indings were not open on the evidence or that error is shown in the sense referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5; SBF v R [2009] NSWCCA 231; (2009) 198 A Crim R 219 at [75]. In order to succeed on ground 2 of this appeal the Crown had to demonstrate error in sentencing in the sense discus…
TMTW v The Queen [2008] NSWCCA 50
Citation 11 (Para 4)

…may be relevant to the exercise of the discretion conferred by s 10: see R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 at [49] - [50]; R v TMTW [2008] NSWCCA 50 at [52]. However, it is not proper to dismiss a charge without conviction merely to avoid the operation of some other legislative provision that is o…
R v KNL [2005] NSWCCA 260
Citation 12 (Para 4)

…Considerations of extra curial punishment may be relevant to the exercise of the discretion conferred by s 10: see R v KNL [2005] NSWCCA 260; (2005) 154 A Crim R 268 at [49] - [50]; R v TMTW [2008] NSWCCA 50 at [52]. However, it is not proper to dismiss a charge without conviction merely to avoid the operation of so…
Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303
Citation 13 (Para 2)

…e of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305. However, the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of…
R v Nguyen [2002] NSWCCA 183
Citation 14 (Para 1)

…a reputation of good character and to avoid the otherwise rigid application of inexorable laws: Cobiac v Liddy (1969) 119 CLR 257 at 269; R v Nguyen [2002] NSWCCA 183 at [50].…
Wong v The Queen [2001] HCA 64
Citation 15 (Para 2)

…fically identifiable in the statement of reasons: see Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]; Dinsdale v The Queen at [58].…
R v Paris [2001] NSWCCA 83
Citation 16 (Para 5)

…ficking Act 1985. The maximum penalty for that offence was imprisonment for 20 years. I was also referred by counsel for the Defendant to R v Paris [2001] NSWCCA 83 and to Hoffenberg v The District Court of New South Wales [2010] NSWCA 142.…
Dinsdale v The Queen [2000] HCA 54
Citation 17 (Para 2)

…r to succeed on ground 2 of this appeal the Crown had to demonstrate error in sentencing in the sense discussed in House v R and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3], [58]. By asserting manifest inadequacy, the Crown contends that the sentencing judge's orders were unreasonable or plainl…
Walden v Hensler [1987] HCA 54
Citation 18 (Para 2)

…ocus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577.…
Cobiac v Liddy [1969] HCA 26
Citation 19 (Para 1)

…y in certain circumstances to maintain a reputation of good character and to avoid the otherwise rigid application of inexorable laws: Cobiac v Liddy (1969) 119 CLR 257 at 269; R v Nguyen [2002] NSWCCA 183 at [50].…
House v R [1936] HCA 40
Citation 20 (Para 2)

…had to establish that the sentencing judge's fact findings were not open on the evidence or that error is shown in the sense referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5; SBF v R [2009] NSWCCA 231; (2009) 198 A Crim R 219 at [75]. In order to succeed on ground 2 of this appeal the Crown had…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 10)
Crimes Act 1900 (ACT)
1 mention (from Para 5)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 13)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v Webster [2022] NSWDC 554
Hearing dates:	5-8, 11-14, 19-22, 28-29 April 2022, 9-10 May 2022
Date of orders:	10 May 2022
Decision date:	10 May 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See par [41].
Catchwords:	CRIME – SENTENCE – DRUG OFFENCES – Finding of a statutory alternative to a count on the indictment – The Defendant already served a relatively significant term of imprisonment on remand – The inexpediency of further punishment – Favourable antecedents and personal considerations of the Defendant.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act1985 (NSW) Drug Misuse and Trafficking Regulation 2011 (NSW)
Cases Cited:	Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 R v Leung; R v Webster(No. 1) [2022] NSWDC 137 R v Leung; R v Webster (No. 2) [2022] NSWDC 138 R v Leung; R v Webster (No. 3) [2022] NSWDC 139 R v Leung; R v Webster (No. 4) [2022] NSWDC 553 R v Mauger [2012] NSWCCA 51 R v Paris [2001] NSWCCA 83 Regina v Van Nam Nguyen [2002] NSWCCA 183
Texts Cited:	Nil.
Category:	Sentence
Parties:	R – Crown Defendant – Cameron Stewart Webster
Representation:	Counsel: Crown – Nightingale, K. Defendant – Ramrakha, T. Solicitors: Crown – Ms Aresh of the Office of the Director of Public Prosecutions Defendant – LegalAid
File Number(s):	2019/276599
Publication restriction:	Nil.