(2002) 128 A Crim R 44
R v MacDonnell (2002) 128 A Crim R 44
R v Pham, Tran & Dang
Source
Original judgment source is linked above.
Catchwords
(2002) 128 A Crim R 44
R v MacDonnell (2002) 128 A Crim R 44
R v Pham, Tran & Dang
Judgment (7 paragraphs)
[1]
Judgment
Dean William Carr pleaded guilty to supply of a commercial quantity of a prohibited drug, namely heroin. This offence carries a maximum penalty of 20 years' imprisonment with a ten-year standard non-parole period.
[2]
Plea
Mr Carr pleaded guilty after committal. Section 25D of the Crimes (Sentencing Procedure) Act 1999 determines the sentencing discount that is to apply for the utilitarian value of the guilty plea. As the plea was not offered before committal, but was given more than 14 days before trial, s 25D(2) provides for a sentencing discount of 10%. This is the discount for which the Crown contends. However, Mr Carr seeks a 25% discount on the basis of s 25D(3), which provides in the following terms that there be a reduction of 25% of any sentence in respect of a "new count offence":
"if an offer to plead guilty was made by the offender and recorded in a negotiations document as soon as practicable after the ex officio indictment was filed or the indictment was amended to include the new count".
The Crown concedes that the offence of supply a commercial quantity of prohibited drug was a new count offence and that Mr Carr pleaded guilty to it on 6 October 2021, as soon as practicable after the ex officio indictment containing the new count was presented. Section 25D(3)(a) was accordingly applicable, save for the effect of s 25D(4)(a).
Section 25D(4)(a) provides that the discount in s 25D(3)(a) does not apply if:
"the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment".
Mr Carr contends that s 25D(4)(a) does not apply.
Section 25D(4)(a) involves a comparison between the original indictment and the new count offence in two respects. The first involves the facts or evidence to establish the new count offence compared to the facts or evidence in the original brief. The second is a comparison of the penalty for the new count offence and the penalty for the offence in the original indictment. Both issues must be satisfied - that is, the facts or evidence must be substantially the same and a new count offence must have a lesser penalty - in order for s 25D(4)(a) to apply and for the larger discount in 25D(3)(a) to be inapplicable.
The uncertainty about the applicability of s 25D(4)(a), so as to render s 25D(3)(a) inapplicable, arises from the circumstance that the original indictment contained several offences which were not withdrawn at committal, namely, supply of a large commercial quantity of a prohibited drug, and two firearms offences. [1]
Although the circumstances that the "offence set out in the original indictment" is not one but three offences, with three penalties, s 8(b) of the Interpretation Act 1987 is sufficient authority to read "offence" as "offences". Although the firearm offences carry a lesser penalty than the new count offence, the original drug offence does not. The original indictment alleged a drug offence which singularly, and in combination with the firearms offences, carried a higher penalty than the new count offence. That is sufficient to satisfy the second "same as, or less than" penalty requirement of the new count offence.
As to the first aspect of comparison, it is apparent, and only faintly disputed, that the facts and evidence to establish the new count offence are substantially the same as "those contained in the brief of evidence or other material" at the committal to establish the first, more serious drug offence in the original indictment. But the facts and evidence to establish the firearms offences are quite different, and I infer, and it was not disputed, were also part of the brief served. Exhibit 3, the Crown Case Statement of 5 May 2021, shows as much. Does the existence of facts and evidence in the brief unrelated to the new count offence render s 25D(4)(a) inapplicable, so that Mr Carr would remain entitled to the 25% utilitarian discount?
Section 25E was also referred to in submissions. Although it has no direct application to Mr Carr, it might inform the proper construction of s 25D. Section 25E would allow a 25% discount had Mr Carr offered to plead guilty to the new count offence before committal. The Crown relies on this to submit that Mr Carr made no relevant offer and thus s 25E does not assist. Mr Carr does not dispute this but relies on 25D(3)(a). The applicability or otherwise of s 25D(4)(a) to exclude s 25D(3)(a) is not dependent on the existence of previous relevant offers even if offers were made and exchanged between the prosecutor and the offender, as occurred here.
The Crown and the offender directed my attention to the decision of R v Doudar. [2] In that decision, R A Hulme J helpfully analysed the terms of s 25D(3) and (4) before deciding in the circumstances before his Honour that only a 10% discount for the plea was allowed. Although I am not bound by that decision, with respect, I can find nothing wrong with the analysis and I would follow it in like circumstances.
In that case, a plea of guilty to the offence of being an accessory after the fact of murder was accepted, whereas Mr Doudar was originally committed for trial on the charge of murder. In those circumstances, the offence for which Mr Doudar pleaded guilty was a "new count offence", and apart from the impact of s 25D(4)(a), Mr Doudar would have been entitled to a 25% discount.
For reasons similar to those discussed in Doudar at [54] to [65], I would infer that the facts or evidence to establish the elements of the new count offence here are substantially the same as those contained in the brief of evidence in respect of the more serious charge of supply a large commercial quantity of a prohibited drug. To establish the facts or evidence to be substantially different, it is not enough for Mr Carr to establish a lesser charge, something described in Doudar as a "narrowing of the offender's role". [3] The term "substantially the same" is to be given its ordinary meaning.
However, while a lesser role by Mr Carr may aptly describe the change in the drug offence, it is inapt to describe the abandonment of the firearms offences. The firearm offences in the original indictment make the present case materially different from Doudar. In Doudar, the accessory after the fact of murder charge replaced the murder charge. Comparison between the offences, the facts or evidence to establish them, and the elements, is readily done. Here, the supply of a commercial quantity of a prohibited substance replaces not merely the large commercial quantity charge, but also the firearms charges. The comparison is of one new count offence with three original offences. That makes the comparison less than straightforward.
Other decisions have reflected on the principles stated in Doudar. [4] Perhaps the most relevant decision is R v Rifai, [5] where Yehia SC DCJ allowed a full 25% discount where the new count offences of possession of prohibited firearms replaced supply firearms offences on the original indictment. The absence of "on-supply of those firearms, or any participation in a joint criminal enterprise to sell them" [6] appeared sufficiently significant to cause the facts or evidence to establish the elements to be otherwise than "substantially the same". [7] The other decisions do not provide guidance on the present issue.
When comparing the facts or evidence relevant to the firearms offences and the new count offence, I am satisfied that they are not "substantially the same". If s 25D intended a comparison with only the most serious offence in the original indictment, or with the facts or evidence relevant only to that offence, it would have been an easy matter to so state. But the comparison is with the "brief of evidence" in the original indictment, a phrase that requires consideration of the evidence relied upon in relation to all the charges in the original indictment, including the firearms offences and potentially even including those on the original indictment for which the offender was not committed for trial.
For these reasons, s 25D(4)(a) is not applicable and Mr Carr should receive the full discount contemplated by s 25D(3)(a).
Accordingly, I propose to allow a deduction of 25% for the utilitarian value of the plea.
[3]
The facts
The following account appears from the guilty plea to the offence and the Agreed Facts.
On about 3 April 2020 Mr Carr returned a Jetts-branded backpack to David Welsh at Mr Welsh's house. The backpack contained four bags of white powder, a plastic shopping bag with resealable bags and freezer bags, and a set of digital Tuff Weight scales covered in a white residue.
Mr Carr at the time said, "Here's your bag bra. It was in the car". The backpack belonged to Mr Welsh, and he had left it with Mr Carr or in his car "when they were socialising".
On the afternoon of 3 April 2020, pursuant to a warrant, police attended the Roselands home of Mr Welsh to conduct a search. The only person present was Mr Welsh's 14-year-old son. Police called Mr Welsh at 2.55pm to organise an adult occupant to be present. At 2.58pm, Mr Welsh realised "he needed to get rid of [the drugs] before police found it". He called Mr Carr and told him that the "Robbery Squad" were going to search his house. Mr Welsh and Mr Carr had a conversation where Mr Carr indicated in Pig Latin, using the words "oiletay" and "aptay", that Mr Welsh could use the toilet or the bath tap. I am satisfied beyond reasonable doubt that these words were used to convey suggested methods of disposing of the drugs in Mr Welsh's house. The context does not suggest that Mr Welsh was or felt obliged to follow the directions from Mr Carr, or that Mr Carr had some financial interest in the drugs.
Mr Welsh then called the police and informed them that arrangements were being made for an adult to attend the house.
A second conversation between Mr Welsh and Mr Carr then occurred. This conversation tended to confirm that Mr Carr was being asked for advice or help, including for Mr Carr to distract the police. Mr Carr told Mr Welsh he would get a lawyer ready. Mr Welsh asked, "[D]o you reckon I'll get bail on it?". Mr Carr said, "I'm not sure bra". Mr Welsh said, "[H]ow long do you reckon?" Mr Carr said, "[M]aybe one or two".
Thereafter, two further conversations occurred between Mr Welsh and Mr Carr prior to the police commencing the search at 3.35pm. The first indicated that Mr Welsh blamed himself for not listening to the advice of his partner, Jaz, to earlier rid himself of the drugs, again indicating that Mr Carr lacked any connection to them.
In a second conversation at 3.28pm, Mr Carr said he was "on the other side of the bridge" and Mr Welsh suggested "[I]t'd be good if someone could just come and make a noise". The terms of the conversation indicate it was a request, understood by Mr Carr, that he should create a disturbance.
At 3.37pm, Mr Welsh again asked Mr Carr about his likely prison term and Mr Carr, then on the City West Link, responded that offenders "get done with heaps of shit and they only get a year or two", possibly indicating that Mr Carr had some idea of the amount of drugs, but that it wasn't "heaps".
Mr Carr at 4.03pm informed Mr Welsh that he may be able to pick him up and that he would drive past the house and "just have a quick glimpse". He then drove past the house and told Mr Welsh that two unoccupied police cars were out the front.
At 4.14pm, the police located the Jetts backpack and its contents.
At 4.22pm, Mr Carr again spoke to Mr Welsh, told him he was parked at a nearby golf course, and they agreed to meet. At 4.46pm, Mr Carr told Mr Welsh that the police were in the street where Mr Carr was parked and that "make sure you hide, they might be coming that way".
At 5.17pm, Mr Carr and Mr Welsh called another man who said, "[A]bout 10 undercovers walked out with fucking all of them the car carrying bags". Mr Welsh said, "They been in there already?" The man said, "[T]hey have been in there already and grabbed a fucking whole lot of stuff". Mr Carr indicated that they would see the man after they had eaten. It was not established whether the man was speaking of the Roselands house or elsewhere, nor what was in the bags to which he referred. Mr Welsh and Mr Carr obtained some takeaway and stayed that night at a friend's place in Randwick.
In the following few nights, Mr Welsh stayed at the Meriton Hotel with his partner and daughter. He met with Mr Carr a few times. Mr Carr bought him clothes and food.
The four bags of powder found in the backpack were analysed and found to contain 1.130 kilograms of heroin. The heroin in two of the bags, each containing about 348 grams, was found to have 70.5% purity and 49% purity respectively.
The four bags were forensically analysed. None were found to contain Mr Carr's DNA or fingerprints but did contain both the DNA and fingerprints of Mr Welsh. [8]
Mr Welsh was arrested on 3 June 2020. He told the police he had known Mr Carr since childhood, that they had grown up together in Redfern.
Mr Carr was arrested on 27 May 2020 at his Earlwood residence. He refused to be electronically interviewed on legal advice but consented to undergo forensic procedures. He was then charged. A search of his Earlwood premises resulted in the seizure of nearly $10,000 in cash, some on the dining table, and some in a kitchen drawer, in two bundles. No charges were laid in respect of the $10,000, and the Crown accepted that the cash was returned to Mr Carr. It is not evidence of the offence. [9]
The 1.13 kilograms of heroin was for the purpose of further supply. Mr Carr was aware that the quantity of the drug was approaching 1 kilogram, but the Crown accepts that it cannot prove beyond reasonable doubt that Mr Carr knew that the amount was a large commercial quantity, namely 1 kilogram or more.
On these facts, coupled with the plea, I find to the criminal standard of beyond reasonable doubt that Mr Carr knew that the backpack contained more than 500 grams of heroin used by Mr Welsh for supply, and that the heroin in the bags was in his possession on 2 or 3 April 2020, after Mr Welsh had left the backpack with him or in his car. Mr Carr was not shown to have been otherwise involved in the supply of drugs and I am satisfied that Mr Carr had no stake or interest in the drugs that "belonged" to Mr Welsh.
The offence is thus to be regarded as somewhat of an isolated incident that was constituted by Mr Carr returning the bags to Mr Welsh for the supply of heroin. [10] Mr Carr did not handle the drugs. He subsequently took steps to assist Mr Welsh, his long-time associate, when Mr Welsh informed him that Mr Welsh's home was the subject of a search. The conversations do not establish that Mr Carr exercised any control over the drugs or reveal a concern over them being seized or lost.
Thus, Mr Carr cannot be said to have played a significant role in the supply. His involvement at the time of the police search was to advise his associate of ways he could dispose of the drugs, to reassure him about the likely penalty, and to meet with him to discuss the search. I do not accept his involvement about the time of the search meaningfully increases the seriousness of Mr Carr's offence, which was principally to return Mr Welsh's backpack containing drugs known by Mr Carr to be for supply which had been left with him or in his car.
[4]
Objective matters
The offence of supply of a commercial quantity of a prohibited drug is a very serious offence carrying a maximum penalty of 20 years' imprisonment. This is the statutory guidepost specifying the sentence applicable in the very worst example of this offence. The standard non-parole period is 10 years which applies to an offence in the middle of the range of seriousness taking into account only objective factors. [11]
The Crown accepts that the objective seriousness falls below the midrange based on the quantity of the drug found and the role of the offender in the supply. The quantity of the drug found was "approaching" the maximum amount for a commercial quantity. That alone does not suggest a lesser than mid-range level of seriousness, although the quantity of the drugs is not the sole or even principal determinant for sentencing, even though the gradation in seriousness arising from the quantity of drugs is reflected in the increasing seriousness of offences based on quantity. [12]
The weight of the drugs is not so significant as the role of the offender, particularly when the role of the offender is of a lower level of seriousness. [13] The role of Mr Carr and his position in the hierarchy of drug supply are important in determining the objective seriousness of the offence. [14] That Mr Carr carried the drugs and must have had them in his possession for a brief period indicates that he is at the bottom of the hierarchy. [15] He did not package or handle the drugs to otherwise assist in their supply. He did not know the amount of the drugs with any precision, and he did not ever discuss the value of the drugs or the exchange of money.
Nevertheless:
"the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse". [16]
None of the aggravating factors listed in s 21A(2) of the Crimes (Sentencing Procedure) Act are applicable save that Mr Carr does have a record of previous convictions, a matter to which I will return. The Crown does not submit that Mr Carr's record aggravates the offence, but rather that it disentitles him to leniency. I accept that Mr Carr is not entitled to leniency on account of his criminal record.
Mr Carr's record reveals a number of break and enter offences dating from 1999. In 2003, he was given a suspended sentence with a requirement that he participated in a drug and alcohol treatment program, and in 2005, at the age of 22, he was called up on this sentence as a result of possession of an unauthorised pistol, and at that time first entered custody.
Thereafter, there was a gap of offending of five years during which his relationship with his now wife, Jade Carr, continued and their two children were born in 2007 and 2010 respectively.
However, in 2011, Mr Carr was involved in serious offences, including robbery while armed with a dangerous weapon. In this offence, Mr Carr and his co-offenders were armed with a 12-gauge shotgun and a semi-automatic rifle for the purpose of kidnapping and extorting a victim. The police interceded before any actual violence occurred. Mr Carr was directing his co-offenders. He received a sentence of seven years' imprisonment with a four-year non-parole period. Special circumstances were found arising from the need for rehabilitation to address his longstanding drug abuse.
Mr Carr has also been imprisoned twice for failing and refusing to answer questions at the Crime Commission. He was released on parole on 11 August 2016, which ended on 11 August 2019, some eight months before the present offence.
It is not generally regarded as significant that the drugs were not disseminated to the community, [17] but it does establish the absence of the aggravating factor in s 21A(2)(g) where the injury, emotional harm, loss or damage caused by the offence was substantial. It may limit the significance of the recognition of harm purpose of sentencing in s 3A(g) of the Act.
In these circumstances, I find that the objective criminality is at the low end of the scale for offences of this type.
[5]
Subjective matters
Mr Carr is 39 years old and is married with four children.
Several matters are raised as relevant subjective matters.
First, remorse is a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. There is evidence of remorse in the plea. The consultant psychologist, Tim Watson-Munro, stated that Mr Carr expressed appropriate remorse for his behaviour. [18]
Dr Stephen Allnutt, psychiatrist, indicated "he has capacity for insight regarding his offending behaviour". [19] Mr Carr's wife also spoke of his remorse. None of this evidence was challenged by cross-examination, although the Crown submitted that the plea was the only evidence of remorse. It is true that Mr Carr's insight into the harm of drug offences is principally found in his recognition of how his own use of drugs has been unhelpful to himself and his family. But the limited evidence of remorse about the harm of drugs and his offence is to be viewed in the context of his limited role in the supply offence for which he is being sentenced. I find that he is entitled to a favourable finding of remorse, although I would not attribute to it a high level of significance in the present sentence.
Prospects of rehabilitation and unlikelihood of reoffending are also mitigating factors under the Act. [20] But the presence or significance of these factors was also challenged by the Crown.
Alison Cullen, in her psychological assessment report, thought Mr Carr presented with protective factors and indicated a "reduced risk of recidivism". [21] Protective factors listed included:
"the strong, consistent support of his long‑term wife; the value he places on fatherhood (supported by the impact of his incarceration has had on his children; his demonstrated capacity to abstain from drug misuse for extended periods of time; his low levels of depressive symptomatology at present and his demonstrated capacity to sustain employment". [22]
Again, Ms Cullen's evidence was not the subject of cross-examination. Yet there remains a doubt about Mr Carr's ability, given his past, to sustain drug abstinence for long periods; and his capacity for employment, while present, is, on the evidence, with persons in the community who have also experienced challenges with the law in the past and so some employment opportunities available to Mr Carr may be less than ideal.
Dr Allnutt also gave some conditional support for a "relatively low risk for future recidivism." [23]
Mr Carr has engaged in courses while in custody in respect of Reading and Numeracy, Education and Employment and Food Safety. He has also expressed a willingness towards, and has shown some consistency in obtaining, counselling and psychotherapy from Mr Watson-Munro.
I have read the references of Mr Carr's friends, a youth worker, his nephew and others he has provided, which offer support for his prospects of rehabilitation.
Notwithstanding this offence, Mr Carr's criminal record appears to have improved since he was released from custody in 2016. He retains the continued loyal and supportive influence of his wife, which remains a powerful factor in his rehabilitation. Some of the evidence indicates that Mr Carr's conversations with and behaviour towards his wife is far less than ideal. Her affidavits and statements to the psychologist, Ms Cullen, confirm that this notwithstanding she will continue to be a protective influence. Because of this, and Mr Carr's willingness to engage with psychotherapy, I find he has reasonable to good prospects of rehabilitation.
Mr Carr is also entitled to some leniency for the deprived and difficult circumstances of his childhood. His father was a member of the Stolen Generation and had little positive contact during Mr Carr's childhood. Mr Carr came into contact with drugs during that time, witnessing his sister's overdose when he was nine. His mother was a beneficial and protective influence, but she suffered from cancer causing Mr Carr to be removed from her care for about two years in his younger teenage years at about the time he commenced cannabis use.
The Crown did not contest that Mr Carr should be regarded as having less moral culpability because of Bugmy considerations. [24] The particular factors of significance are the separation from his mother, his involvement with drugs at a young age, and a criminal element in the community in which he lived where apparently "every single one of [Mr Carr's 10] siblings has been to prison". [25]
Mr Carr is also entitled to leniency because of a serious motor vehicle accident when he was 17 years old that left him with a permanent brain injury and mental illness not disputed by the Crown. As DPP v De La Rosa states, [26] where a person's mental health contributed to the commission of the offence in a material way, moral culpability may be reduced, as is the Court's need to denounce the crime. The offender may be an inappropriate vehicle for general deterrence, a custodial sentence may weigh more heavily on the offender warranting a reduction, and the need for or utility of specific deterrence may be reduced or eliminated.
All these factors are relevant to sentencing under s 3A of the Crimes (Sentencing Procedure) Act. So also is the possibility of an increased need for community protection if the mental illness manifests greater danger to the community, although the Crown did not submit that that arises here or that the present offence enlivens that consideration.
Ms Cullen and Dr Allnutt separately reviewed the earlier medical reports and found that the neurocognitive disorder and psychiatric deficits from the traumatic brain injury persist and were said, respectively, to "directly relate to his index offending" [27] and "are the factors that likely contributed to the offending". [28]
Finally, as Mr Welsh has been sentenced in respect of his involvement in this criminal conduct, it is appropriate to consider the principal of parity and to impose a sentence on Mr Carr that would not, in comparison with the sentence of Mr Welsh, give rise to a source of grievance.
Mr Welsh received, before discount, a head sentence of four years' imprisonment. In comparison, in Mr Carr's favour, he has much stronger Bugmy factors than Mr Welsh, even if Mr Welsh received some discount on that basis. [29] Mr Carr also has an entitlement to leniency based on his psychiatric illness and traumatic brain injury. His role in the offence is significantly less than Mr Welsh's role, even if Mr Welsh's role, as found in his sentence, was significantly less than the evidence before this Court would suggest. [30] The Crown did not contest that Mr Carr's role must be regarded as less than Mr Welsh's.
In addition, Mr Welsh pleaded guilty to a more serious offence of supply of large commercial quantity of heroin attracting a more severe maximum penalty of life imprisonment. In terms of quantity of the drugs, the Crown submits that Mr Welsh is at the low end of a "large commercial quantity" whereas Mr Carr's offence was at the higher end of a "commercial quantity". But that distinction manifests the lesser offence of Mr Carr and the significantly lower maximum penalty.
Finally, Mr Welsh was on conditional liberty at the time of his offence, a matter of aggravation under s 21A(2)(j), whereas Mr Carr's period of parole had expired before the offences, so the aggravating factor has no application to him.
The Crown pointed to the favourable findings of remorse and rehabilitation of Mr Welsh in his sentence, as well as his arguably less serious past criminal offences as matters that weighed against Mr Carr when considering the issue of parity.
Mr Carr's most serious past penalty was a seven-year term of imprisonment with four years' non-parole for conspiracy to commit an armed robbery with a dangerous weapon in 2011. Mr Welsh's most serious offence was a more recent wounding with intent to cause grievous bodily harm in 2013. It involved the lower head sentence of five and a half years. Mr Carr's conspiracy offence was foiled by the police before any violence occurred. Mr Welsh's offence in a dispute over a debt of $100 involved him using a knife to sever the Achilles tendon of a blind victim, and an intention to do the same to the victim's other leg until he was restrained by the victim's brother. [31]
I do not think that the comparison of Mr Carr's and Mr Welsh's past offences operate to lessen the favourable finding on the parity principle to which Mr Carr is entitled, although, as stated, they deny Mr Carr any leniency on the ground of his past record.
None of these matters operate to deny that this was a very serious offence. It plainly satisfies the threshold requirement in s 5 of the Act that no other penalty than imprisonment is appropriate, a matter which I find after considering all possible alternatives. The defence accepts that a sentence of full-time custody is inevitable.
I have also taken into account statistics tendered of sentences for this offence and where there has been a guilty plea. A small but not insignificant percentage of the cases resulted in an intensive correction order. Because Mr Carr has already served a lengthy period in custody, such a penalty, which must date from today, [32] would be inappropriate. In any event, the head sentence I propose would not allow such an option as it exceeds two years.
In my view, before a discount for the plea is applied, Mr Carr's offence warrants a sentence of three years' imprisonment. Because of the utilitarian value of the plea, that sentence should be reduced by 25% to two years and three months.
I find special circumstances on account of Mr Carr's mental issues and drug dependence and impose a non-parole period of 18 months.
Mr Carr has been in custody in respect of this offence from 26 August 2020 to date, being 19 months and 13 days. Accordingly, his sentence should date from 26 August 2020, and he is presently entitled to parole.
[6]
Sentence
Mr Carr, would you please stand.
1. You are convicted on supply of a commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985.
2. You are sentenced to a term of imprisonment of two years and three months to date from 26 August 2020 and expiring on 25 November 2022.
3. I set a non-parole period of 18 months making you eligible for parole on 25 February 2022. You are thereby presently eligible for parole.
4. I find special circumstances.
[7]
Endnotes
Exhibit D.
[2020] NSWSC 1262.
At [67].
R v French [2021] NSWSC 1531, R v Rifai [2022] NSWDC 74, R v Black (No 2) [2021] NSWSC 77.
[2022] NSWDC 74.
At [28].
Cf at [23] and [29].
Exhibit A, p 42 at [5].
Cf Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701.
See s 3 of the Drug Misuse and Trafficking Act 1985.
Crimes (Sentencing Procedure) Act 1999, s 54A.
R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at [33].
R v Pham, Tran & Dang; Ex parte Director of Public Prosecutions (DPP) [2017] QCA 046 at [35], R v Sara [2020] NSWCCA 119 at [85]-[87]. See also Wong v R (2001) 207 CLR 584 at [68]-[69].
The Queen v Olbrich (1999) 199 CLR 270 at 279 [19]; R v MacDonnell (2002) 128 A Crim R 44, R v Blair (2005) 152 A Crim R 462 and Paxton v R [2011] NSWCCA 242.
Tyler v The Queen [2007] NSWCCA 247, (2007) 173 A Crim R 458 at 470.
Regina v Shi [2004] NSWCCA 135 at [34].
R v DW [2012] NSWCCA 66 at [115]-[117], Taysavang v R [2017] NSWCCA 146 at [45]-[53].
Exhibit 1, p 27.
Exhibit 1, p 24.
Crimes (Sentencing Procedure) Act 1999, s 21A(3)(g) and (h).
Exhibit 1, p 14.
Exhibit 1, p 14.
Exhibit 1, p 24.
Bugmy v The Queen (2013) 249 CLR 571.
Exhibit 1, p 7.
(2010) 79 NSWLR 1.
Exhibit 1, p 14.
Exhibit 1, p 24.
Cf Exhibit A, pp 49-50 [27]-[28].
Cf Exhibit A, pp 42-44 [5] and [8].
Exhibit A, p 49 [26].
Mandranis v R [2021] NSWCCA 97 at [55]-[56], R v Edelbi [2021] NSWCCA 122 at [79]-[80].
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Decision last updated: 27 June 2022