Supreme Court New South Wales Medium Neutral Citation: R v AA [2019] NSWSC 1423 Hearing dates: 18 October 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: The motion for vacation of the dates is dismissed. Catchwords: CRIMINAL PROCEDURE – application to vacate sentence hearing – fundamental issue associated with effect on third party being a young child of the offender and her co-accused – sentence initially set for a date after the trial of the co-accused for that reason – co-accused may be retried, but not before 2020 – issue of how best to balance justice in the sentencing of the offender – application to vacate refused Cases Cited: Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Procedural rulings Parties: Regina (Crown/Applicant) AA (a pseudonym) (Offender/Respondent) Representation: Counsel: A McGrath (Crown/Applicant) J Roy (Offender/Respondent) Solicitors: Director of Public Prosecutions (Cth) (Crown/Applicant) Watsons Solicitors & Barristers (Offender/Respondent) File Number(s): 2016/321937 Publication restriction: Suppression orders made under s 7(1) of the Court Suppression and NPO Act 2010 (NSW) EX TEMPORE Judgment 1. HIS HONOUR: It seems to me that the issue before the Court is not one of great principle but one of great practical significance. The accused seeks to vacate sentence dates that are set down for the 18 and 19 November. Those dates were set down at that time on the understanding that a co-accused, her husband, BB, would have been tried and a result obtained. 2. The importance of that result relates to the young child of the accused and BB, who is, I understand, currently about 4 and a half years old. The accused and BB are recent immigrants to Australia and therefore do not possess an extended support network that might otherwise be available for someone who had been here for many years. 3. As a consequence, the care of the young child looms large in the matters that the accused is to put before the Court on sentence. The circumstance is that BB's trial did not reach a conclusion. The jury was discharged without verdict. The Crown is yet to elect as to whether it will proceed to a retrial. 4. Although a view has been expressed that it is likely that a retrial will occur, that view is not binding on the Crown and I do not assume it is binding on the Crown. 5. It has been pointed out by the accused that the difficulty with delay, which I raised with Ms Roy who appeared for the accused, is insignificant in the context of the delay that has already occurred. The offences in question are said to have been committed in 2009/2010. The investigation of the offence occurred in or about 2013 and the charges were laid in 2016. 6. As a consequence there has been a delay already of some nine years. Another six months or 12 months even, may not be such a delay as to warrant the concern of the Court. 7. Nevertheless, any delay in imposing the sentence, in circumstances where the accused has pleaded guilty, is a delay that is not optimal. A proportion of the non-parole period at least, that may be imposed as a result of the plea, rather the sentence on plea, may have been served by the time BB would be able to be sentenced. There is some merit in that proposition, in circumstances where there has to be, or should be, a discount for the plea of guilty, and the fact that this is a first offence for someone who is otherwise to be referred to, colloquially, as a "cleanskin". 8. The leniency that one affords in accordance with the judgment of the High Court in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14, to a first offender is a significant factor, particularly when it is added to the discount that is to be afforded for a plea of guilty at a very early stage. I raised with the Crown a further issue as to the level of moral culpability, in contravening a law of Australia that has extraterritorial effect, in circumstances where that law prohibits transfer of goods to Iran and the person who has breached the law is in Iran, seeking to have the goods brought into that country. 9. I am not yet sure how that plays out, in terms of moral culpability, and I certainly have not judged that situation, but it is another strange, if not exceptional element that has to be determined by the Court. It is a very fine line as to how best to deal with this issue. 10. The Crown says that the accused in this case is more culpable than BB, the co-accused, who has pleaded not guilty and may or may not go to trial again. That of course does not mean that a higher sentence would be imposed, because of the factors to which I have already referred. 11. In all of the circumstances, it seems to me that the best course is not to vacate the 18th and 19th, and to hear the sentence at that time. By that stage, I will know whether the Crown is proceeding to a retrial on BB and I will be able to factor that into whatever sentence or procedure then occurs. 12. I am not precluding a further application for adjournment, but I am also not holding out any false hope that such an application would be successful. For obvious reasons, this decision is interlocutory and the application can be renewed. I would not think it necessarily an abuse to do so, once the circumstances of the retrial were known. 13. In all the circumstances, the motion for vacation of the dates is dismissed and the matter remains listed for sentence hearing on 18 and 19 November 2019. ********** Amendments 09 December 2021 - Pseudonym revised. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2021