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District Court 27 May 2021

R v Skelly

[2021] NSWDC 205

Drugs
CRIME SUPPLY PROHIBITED DUG CANNABIS CRIME CONFISCATIONS FORFEITURE ORDER PROCEEDS OF INDICTABLE OFFENCE SENTENCE

Citation: R v Skelly [2021] NSWDC 205
Court: District Court of New South Wales
Date: 27 May 2021
Judge(s): Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to a charge of supplying 24 kilograms of cannabis, contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985, carrying a maximum penalty of 10 years imprisonment. The quantity was accumulated across 16 transactions between November 2019 and June 2020, with only 1.8 kilograms physically seized by police.

Prior to sentencing, the offender signed an "agreed facts" document in the presence of his solicitor. That document acknowledged, among other things, that he had organised a courier (referred to by the pseudonym Hall) to deliver cannabis to a customer in Goulburn (referred to as Redman), using the courier arrangement deliberately to reduce his own exposure to detection. He was said to have taken a profit of approximately $1,750 per transaction.

By the time the matter came on for sentencing, the offender's account to a Community Corrections Officer, in a letter to the court, and through a psychologist's report had diverged markedly from those agreed facts. He now claimed his role was limited to making introductions and providing premises, with no commercial interest in the transactions. That inconsistency prompted the court to adjourn the matter and conduct a contested facts hearing under the Evidence Act 1995.

  • Whether the offender's later version of events, contradicting the signed agreed facts document, should be accepted and acted upon at sentencing.
  • What standard of proof applies to disputed facts in mitigation and aggravation at sentencing.
  • What factual basis should govern the sentence in light of the contested evidence.
  • Whether a drug proceeds order should be made under the Confiscation of Proceeds of Crime Act 1989, and if so, in what amount.
  • What, if any, reduction in the utilitarian discount for the early guilty plea was warranted given the offender's conduct at the sentencing hearing.

Decision

Factual dispute. The court conducted a contested hearing at which Detective Senior Constable Jenkins, two witnesses referred to by pseudonyms (Ms Smith and Mr Hall), and the offender all gave evidence. The court found the offender to be an unconvincing witness who appeared to be tailoring his account to match a concocted story. His explanation for signing the agreed facts document (that he did not regard it as binding) was rejected as making no sense, and his attempts to blame his former solicitor were treated as reflecting adversely on his credibility.

Witnesses for the Crown. Ms Smith gave consistent evidence and did not waver under cross-examination. Minor discrepancies in her police interview were insufficient to damage her credit. Mr Hall's evidence was consistent with his police statement, with Ms Smith's account, and with his own earlier sentence proceedings. The court accepted their accounts as credible and consistent with telephone records and police surveillance. The court found the version set out in the agreed facts document was the correct one.

Guilty plea discount. The court noted that a contested facts hearing that runs against an offender can justify a reduction in the utilitarian discount ordinarily afforded for an early guilty plea. Because the offender pressed a version inconsistent with the agreed facts and lost, the court reduced the discount accordingly.

Proceeds order. The court rejected the offender's version for the purposes of the proceeds calculation and accepted Detective Jenkins's estimates as a sound basis. Calculating wholesale and retail prices across the 48.8 pounds sold (after deducting the four pounds recovered by police and Hall's courier fee of $700 per transaction), the court assessed the net gain to the offender at approximately $26,000. The court noted that a proceeds order should not deprive an offender of more than the actual fruits of the crime, in keeping with the legislative intent behind s 24B of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Drug proceeds order under s 29(1) of the Confiscation of Proceeds of Crime Act 1989 requiring the offender to pay the State of New South Wales the sum of $26,000.

(The sentencing orders on the principal supply offence were not reproduced in the text provided.)

Key Takeaways

  • A sentencing court is not bound by an offender's later, contradictory account simply because an early guilty plea was entered. Where the offender presses a version inconsistent with a signed agreed facts document and that version is rejected after a contested hearing, the court may reduce the utilitarian discount for the plea.
  • Under The Queen v Olbrich (1999) 199 CLR 270, facts in mitigation must be established on the balance of probabilities; facts in aggravation must be proved beyond reasonable doubt. Where an offender disputes agreed facts and calls evidence, the court must make its own assessment of that evidence.
  • Signing an agreed facts document in the presence of a solicitor is treated as a meaningful concession in sentencing proceedings. An offender's claim not to have appreciated the document's significance will not necessarily be accepted, particularly where the offender has prior relevant criminal history.
  • A drug proceeds order under the Confiscation of Proceeds of Crime Act 1989 is calculated by reference to the actual benefit received by the offender. The court confirmed, drawing on the second reading speech for the Crimes (Sentencing Procedure) Amendment Act 2010, that such an order should not deprive the offender of more than the genuine fruits of the offending.
  • Credibility findings in a contested facts hearing can be determinative of concurrent proceeds of crime proceedings, where the parties agree that the factual findings will govern both.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24B
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Evidence Act 1995 (NSW), s 4(1)(c)

Cases
- The Queen v Olbrich (1999) 199 CLR 270
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- Green v The Queen (2011) 244 CLR 462
- Postiglione v The Queen (1997) 189 CLR 295
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Hall [2013] NSWCCA 47; 227 A Crim R 544
- R v Hall [2020] NSWDC 151
- Afu v R [2017] NSWCCA 246
- DPP v Colakoglu [2015] NSWCCA 301
- Parente v R [2017] NSWCCA 284
- Robertson v R [2017] NSWCCA 205
- R v Redman [2020] NSWDC 554
- Lattouff v R NSWCCA (unreported, 12 December 1996)
- Ozenkowski v R (1982) A Crim R 394
- R v Herring (1956) 73 WN (NSW) 203