R v Winters - [2021] NSWDC 792

District Court

New South Wales

Medium Neutral Citation: R v Winters [2021] NSWDC 792
Hearing dates: 10 November 2021
Date of orders: 10 November 2021
Decision date: 10 November 2021
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of three years and one month with a non-parole period of two years: at [32].

Catchwords:
SENTENCING — Aggravating factors — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness — Objective seriousness
SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Mental illness — Special circumstances

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

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
R v CBK (2002) 135 A Crim R 260
Parente v R [2017] NSWCCA 284
Bugmy v The Queen (2013) 249 CLR 571

Category: Sentence
Parties:
Regina (Office of the Director of Public Prosecutions)
Mark Winters (Offender)
Representation:
Ms K McCrossin (Solicitor, Office of the Director of Public Prosecutions)
Mr J Moffett (Counsel for the offender)

File Number(s): 2020/152311

Judgment

Mark Winters, a 61 year old Aboriginal man, appears for sentence on three counts. He pleaded guilty, in circumstances justifying a 25% discount on any term of imprisonment. He has been in custody since his arrest on 21 May 2020 and it is acknowledged by Mr Moffet of counsel that full time custody is appropriate in the circumstances, and that the sentence should commence on that date.
The first count (sequence 2) is supplying 330 grams of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years.
The second count (sequence 22) is an offence contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 of supplying prohibited drugs on an ongoing basis. The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period. That offending involved 38 supplies totalling 157 grams of methylamphetamine.
The third count (sequence 25) is knowingly allow a premises to be used as drug premises contrary to s 36Y(1)(a) of the Drug Misuse and Trafficking Act 1986. The offence carries a maximum penalty of 12 months imprisonment with no standard non parole period.
There are five matters to be dealt with on a Form 1 attached to the second principal count (sequence 22), that is the ongoing supply, namely:

Sequence 1 – Possess prohibited drug (1.18g methylamphetamine)

Sequence 3 – Supply prohibited drug (69.5g methylamphetamine)

Sequence 4 – Possess prohibited drug (2.5g gamma butyrolactone)

Sequence 5 – Possess prohibited drug (0.7g cannabis)

Sequence 24 – Recklessly deal with proceeds of crime…

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 Winters

Details

AGLC: R v Winters [2021] NSWDC 792
Case: [2021] NSWDC 792
Decision Date: 10 November 2021

CaseChat Overview and Summary

The case of R v Winters involved the defendant, Winters, who was convicted of multiple drug-related offences. The matter was heard in the County Court of Victoria, where the sentencing of Winters was the primary focus. The court was tasked with determining the appropriate sentence for Winters, considering both aggravating and mitigating factors.

The legal issues the court had to decide included the impact of Winters' previous convictions, his plea of guilty, and his expressions of remorse. Additionally, the court had to consider the nature and objective seriousness of the offences, the deterrence value of the sentence, and the need to balance these with Winters' personal circumstances, such as his Aboriginal background, drug addiction, and mental health issues.

The court's reasoning involved a comprehensive analysis of the aggravating factors, including Winters' criminal history, which demonstrated a pattern of drug-related offences. Mitigating factors such as the plea of guilty and expressions of remorse were also considered. The court weighed the objective seriousness of the offences, the need for deterrence, and the specific circumstances of Winters' case. Ultimately, the court determined that an aggregate term of imprisonment of three years and one month, with a non-parole period of two years, was appropriate. This sentence balanced the need for punishment and deterrence with the personal circumstances of the offender.

The final orders of the court mandated an aggregate term of imprisonment of three years and one month, with a non-parole period of two years. This decision reflected the court's assessment of both the aggravating and mitigating factors, as well as the overall objectives of the sentencing process.

Orders

Orders of the court

An aggregate term of imprisonment of three years and one month with a non-parole period of two years: at [32].

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 Winters [2021] NSWDC 792
Hearing dates:	10 November 2021
Date of orders:	10 November 2021
Decision date:	10 November 2021
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of three years and one month with a non-parole period of two years: at [32].
Catchwords:	SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Form 1 offences — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness — Objective seriousness SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Mental illness — Special circumstances
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 R v CBK (2002) 135 A Crim R 260 Parente v R [2017] NSWCCA 284 Bugmy v The Queen (2013) 249 CLR 571
Category:	Sentence
Parties:	Regina (Office of the Director of Public Prosecutions) Mark Winters (Offender)
Representation:	Ms K McCrossin (Solicitor, Office of the Director of Public Prosecutions) Mr J Moffett (Counsel for the offender)
File Number(s):	2020/152311