Cressel v R

Court of Criminal Appeal (NSW)|2021-03-01|Before: Gleeson JA, Harrison J, Bellew J

The applicant's subjective case

The applicant is a citizen of the United States of America and is African American. He born on 26 December 1986. He was 29 years of age at the time of the offending and is now 34 years of age.
A report of Dr Peter Ashkar, Forensic Psychologist and Clinical Neuropsychologist, was tendered before the sentencing judge. The applicant told Dr Ashkar that he was "very bad with money" [16] and that he saw the offending as "an opportunity to make quick and easy money in light of [his] unstable financial position by collecting and delivering packages". [17] Dr Ashkar formed the view that the applicant demonstrated "a sophisticated understanding of the moral and ethical issues underpinning the illegality of his offending behaviour". [18]
The applicant told Dr Ashkar that he was deeply ashamed for the disappointment that he had caused his family as a consequence of his offences. [19] He specifically acknowledged that he "should have known better" but said that his arrest had given him the opportunity to make amends and provide focus. [20] The applicant also told Dr Ashkar that he had been working as a sweeper in custody and that he provided informal counselling to other inmates about substance use. [21] A Correctional Officer to whom Dr Ashkar spoke at the conclusion of the assessment described the applicant (but for one minor violation in custody) as a "model prisoner". [22]
The applicant's responses to testing administered by Dr Ashkar suggested a personality style that predisposed him to poorly controlled behaviour. [23] Dr Ashkar concluded that treatment targeting the applicant's personality functioning would be vitally important for his rehabilitation, and for his psychological well-being generally. [24] Although not specifically stated, the general tenor of Dr Ashkar's opinion was that in circumstances where the applicant has close family ties, strong support and solid vocational resources, his prospects of rehabilitation were favourable, providing that he committed to, and engaged in, any necessary treatment.
The applicant did not give sworn evidence in the sentence proceedings but provided a letter addressed to the sentencing judge in which he made reference to the fact that the time of his offending he was a user of cocaine and was addicted to gambling. [25]
An affidavit of the applicant of 24 February 2020 was read on the question of re-sentence in which the applicant detailed an incident which occurred in custody on 14 November 2020. In respect of that incident, it is sufficient for present purposes to note that, in accepting the applicant's unchallenged account of what occurred, he was subjected to serious racial vilification by a group of Correctional Officers. Following that incident, the applicant sought treatment from a Psychiatrist in custody, and underwent an assessment by Dr Milic, Clinical and Forensic Psychologist. In a report tendered before this Court, [26] Dr Milic noted that as a consequence of the incident the applicant had reported a number of symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder. [27] Dr Milic concluded that the applicant's mental health had been eroded because of the incident, which had rendered his time in custody more onerous. [28]
The applicant's father and mother provided a joint testimonial in which they described him as a respectful and positive person. [29] They pledged their ongoing support for him, stressing that he had, prior to his arrest, been a person of good character. They also made reference to the applicant's expressions of remorse to them, along with the fact that in their observation the applicant was highly motivated and focused on his rehabilitation.
A testimonial from Rev Peter Baines, [30] a prison Chaplain at the Long Bay Correctional Centre, made reference to the fact that the applicant had been given a position of trust in custody as a sweeper and had also taken a leadership role in the Christian community within the gaol. Other testimonials made specific reference to the applicant's prior good character, his expressions of remorse, and his unconditional acceptance of responsibility for his offending. [31]
At the time of the applicant's arrest, police had detected only the offending in count 1. Having made full admissions to the police as to his involvement generally, and his involvement in the offending in count 1 in particular, the applicant also disclosed the fact that a further package had been sent to Australia. The information he provided enabled the package to be seized by police following its arrival. [32]
A copy of a letter of assistance provided to the sentencing judge was made available to this Court. That document confirms that the information provided by the applicant to police led to the identification and seizure of the package which is the subject of count 2. In providing that information, the applicant prevented a marketable amount of cocaine from being dispersed into the community. Other information provided by the applicant was assessed as being of low intelligence value, and overall, the assistance provided by the applicant was assessed by the police as being of "medium value".

Submissions of the applicant

In written and oral submissions, counsel described the applicant's role in the offending as "entirely expendable and replaceable". He submitted that the applicant had "no real managerial or decision-making authority", and that although the offending was planned and premeditated, this was a common characteristic of offending of this nature. Counsel stressed that the applicant was "not at the top of the hierarchy", and pointed out that, unlike the position in many of the cases relied upon by the Crown for comparative purposes, the applicant had not travelled to Australia for the sole purpose of becoming involved in the offending, but had in fact been lawfully employed for a period following his arrival.
In addressing the applicant's subjective case, which counsel described as "very attractive", emphasis was placed upon: 1. the early plea of guilty; 2. the applicant's assistance to authorities; 3. the absence of any prior convictions; 4. the applicant's genuine remorse and contrition; and 5. the applicant's clear insight into his offending and his excellent prospects of rehabilitation.

Submissions of the Crown

Counsel for the Crown stressed the necessity to have regard to principles of general deterrence and denunciation in sentencing for offending of this nature. It was submitted that such considerations would generally outweigh subjective circumstances when determining the sentence, and that stern punishment was warranted in almost every case.
In terms of the offending generally, the Crown emphasised: 1. the applicant's role; 2. the fact that the two importations were not isolated; and 3. the planning and premeditation involved.
The Crown submitted that the applicant had performed a crucial role in the venture surrounding the importation. The Crown also submitted that the applicant obviously knew the approximate weight of the drugs in each package, and had involved himself in the importation because of an expectation that he would make money.
The Crown took no issue with the fact that the applicant had expressed genuine remorse, that his prospects of rehabilitation were favourable, and that he was a person of no prior convictions.

Consideration

Section 16A(1) of the Act provides that in determining a sentence for a federal offence, the Court must impose a sentence that is of a severity appropriate in all of the circumstances of the case. Section 16A(2) sets out a number of matters which must be taken into account, to the extent that they are relevant and known to the Court. Whilst the matters in s 16A(2) do not constitute an exhaustive list of relevant considerations, a number of them are applicable in the present case.

The nature and circumstances of the offence - s 16A(2)(a)

The need for adequate punishment - s 16A(2)(k)

The nature and circumstances of the applicant's offending have been set out. [33] The seriousness with which the Parliament views such offending is reflected in the prescribed maximum penalties. [34] This Court has previously observed that significant punishment must be imposed upon those persons who choose to offend in this way. [35]
The amount of the drug, although obviously not determinative, remains a significant factor on the question of sentence. [36] That significance will be greater if an offender is aware of that amount. [37] In respect of count 1, the amount of the cocaine was more than 1½ times the commercial quantity of 2kg. In respect of count 2, the amount was more than 700 times the marketable quantity of 2g. Moreover, in light of the content of the exchanges between the applicant and Heavy Duty, [38] I am satisfied that the applicant was generally aware of the amount of cocaine which was the subject of each importation.
Any consideration of the nature and circumstances of the offending, and the need for adequate punishment, must necessarily include an assessment of the role played by the applicant. In considering that issue, the focus must be upon what the applicant did. [39]
Having provided Heavy Duty with the necessary (false) details of the consignee in each case, the applicant had the sole responsibility for facilitating the receipt of the packages following their arrival in Australia. In other words, he had the sole responsibility for effecting the actual importation in each case. Whether the applicant's role was, as counsel submitted, "expendable and replaceable" is not to the point. The simple fact is that the applicant chose to perform that role for financial reward.
Further, the applicant's various exchanges with Heavy Duty make it clear that in performing that role, he engaged in planning and premeditation to a significant degree. The fact that he had no decision-making responsibility himself, and took instructions from Heavy Duty, does not, of itself, lead to a conclusion that he should be regarded as having a lower level of responsibility. [40] His role which was an indispensable one which facilitated international drug trafficking on a significant scale. Whilst I accept that the applicant has strong subjective circumstances which I have discussed below and which must be taken into account, it is necessary that there be reasonable proportionality between any sentence imposed, and the serious objective gravity of the applicant's offending. [41]

The applicant's plea of guilty - s 16A(2)(g)

There is no dispute that the applicant pleaded guilty when the charges were before the Local Court. Bearing in mind the decisions in Xiao and Liu, that plea carries with it significant utilitarian value. A discount of 25% is appropriate.

The applicant's contrition - s 16A(2)(f)

As I have already noted, the applicant did not give sworn evidence before the sentencing judge but wrote a letter for his Honour's consideration. Such a course has consistently been the subject of disapproval by this Court. [42] In the circumstances, I place little weight on the contents of that letter. That said, there is considerable evidence of the applicant's expressions of remorse and I am satisfied that those expressions are genuine.

The applicant's cooperation with law enforcement agencies in the investigation of the offence or of other offences - s 16A(2)(h)

I have set out the nature and extent of the applicant's co-operation. [43] In addition to his admissions, the applicant volunteered information which, at the time, was not known to the police and which enabled the offending in count 2 to be detected. Needless to say, the applicant was not under any obligation to disclose that information. An additional discount of 10%, over and above that allowed for the plea of guilty, is appropriate to reflect the applicant's past co-operation to the authorities.

General deterrence - s 16A(2)(ja)

In light of the subjective materials which I have referred to, there appears to be little need for any sentence to incorporate a measure of personal deterrence.
General deterrence, however, is a different matter, and is factor which has long been recognised as important when sentencing for offending of this nature. [44] The difficulty in detecting offending of this type, and the great social consequences that follow from it, means that general deterrence is to be given considerable weight on sentence. Any sentence imposed must signal to those who might be tempted to offend in this way, that the potential financial rewards to be gained are neutralised by the risk of severe punishment, and that any involvement, at any level, in a venture of this kind will necessarily result in the imposition of a significant sentence. Were it otherwise, the necessity for general deterrence would not be served. [45]

The character, antecedents, cultural background, means and physical or mental condition of the offender - s 16A(2)(m)

The applicant's subjective circumstances have been previously summarised. He is a person of no prior convictions, and a person of previous good character generally. His behaviour on this occasion appears to be entirely aberrant. Whilst these matters must be taken into account, it has also been consistently recognised that good character is not an unusual characteristic of persons who become involved in this type of offending. [46] As a consequence, the applicant's prior good character is a matter to be given less weight as a mitigating factor on sentence. [47]
In terms of the applicant's psychological condition, the report of Dr Ashkar is in my view of limited significance. However, that is not the case in terms of the more recent report of Dr Milic. The incident to which the applicant was subjected to whilst in custody, which was not the result of any misbehaviour on his part, must have been particularly troubling for him. It has resulted in the onset of Post-Traumatic Stress Disorder. The applicant's symptoms following the incident were of sufficient severity to cause him to seek psychiatric intervention. His conditions of custody have clearly been rendered more difficult and onerous than would otherwise have been the case. That is a factor of some significance which I have taken into account on sentence.

Prospects of rehabilitation - s 16A(2)(n)

It is clear from the evidence to which I have referred that the applicant has made good use of his time in custody. That is reflected in (inter alia) the fact that he occupies a position of responsibility as a sweeper. I am satisfied on the whole of the evidence of his prospects of rehabilitation are favourable, and that he is unlikely to reoffend.

ORDERS

The Crown referred the Court to sentences imposed in a number of other cases involving the importation of narcotics. I do not propose to address those cases in any detail as I did not find them of any real assistance. There were, as might be expected, various differences between each of those cases and that of the applicant, as to both objective and subjective circumstances.
I have had regard to the principle of totality, and consider that there should be some accumulation between the two sentences to be imposed.
I propose the following orders: 1. The time in which to file an application for leave to appeal is extended to 28 September 2020. 2. Leave to appeal is granted. 3. The appeal is allowed. 4. The sentences imposed in the District Court are quashed. 5. In lieu thereof, the applicant is sentenced as follows: 1. In respect of count 2, imprisonment for 6 years and 6 months commencing on 29 April 2016 and expiring on 28 October 2022. 2. In respect of count 1, imprisonment for 9 years commencing on 29 April 2017 and expiring on 28 April 2026. 3. The total effective sentence is 10 years imprisonment. 4. I impose a single non-parole period of 6 years imprisonment commencing on 29 April 2016 and expiring on 28 April 2022.

Endnotes

AB 33.
AB 6-8.
ROS at [4]-[10]; AB 25-26.
ROS at [12]-[15]; AB 26-27.
(2018) 96 NSWLR 1; [2018] NSWCCA 4.
ROS at [43]; AB 32.
[2018] NSWCCA 70; (2018) 272 A Crim R 266.
ROS at [47]; AB 33.
At [269]-[278].
See Schedule 8 of the Crimes Legislation Amendment (Sexual Crimes against Children and Community Protection Measures) Act 2020 (Cth) which came into force on 20 July 2020.
At [9].
Diaz v R [2019] NSWCCA 216 at [76] and following per Button J, Gleeson JA and Lonergan J agreeing.
Agreed Facts at [8]; AB 42-43.
Agreed Facts at [19]; AB 47.
Agreed Facts at [20]; AB 47-48.
At [6]; AB 66.
At [11]; AB 67.
At [12]; AB 68.
At [5]; AB 65.
At [12]; AB 68.
At [13]; AB 68.
At [13]; AB 68.
At [14]; AB 69.
At [16]; AB 70.
AB 73-75.
Exhibit A.
At 4.
At 5.
AB 76-77.
AB 78.
AB 80-85.
AB 49.
See [9]-[10] above.
R v Bimendali [1999] NSWCCA 409; (1999) 109 A Crim R 355 at 362; Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31].
See for example R v Si Thanh To [2007] NSWCCA 200 at [12] per Hulme J; (2007) 172 A Crim R 121.
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [32]-[37], [45].
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 607-608; [2001] HCA 64.
See for example, the conversation on 13 April 2016 set out in the Agreed Facts at [8]; AB 43.
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19].
R v Nguyen; R v Pham [2010] NSWCCA 238 at [72] per Johnson J (Macfarlan JA and R A Hulme J agreeing); (2010) 205 A Crim R 106.
R v Amati [2019] NSWCCA 193 at [120] per Johnson J and the authorities cited therein.
See for example R v Elfar [2003] NSWCCA 358 at [25]; Cotter v R [2020] NSWCCA 299 at [50]; Weber v R [2020] NSWCCA 103 at [63].
See [30]-[31] above.
R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 at [57]-[58].
See Gwardys v R [2019] NSWCCA 62 at [49] per Bellew J (Payne JA and Campbell J agreeing) citing R v Nguyen; R v Pham at [72].
Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238 at [49].
R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221 at [20]-[25]; (2005) 153 A Crim R 451.

Amendments 08 March 2021 - Correction to cover sheet 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: 08 March 2021

Crimes Legislation Amendment (Sexual Crimes against Children and Community Protection Measures) Act 2020(Cth)

Solicitors: Ren Zhou Lawyers - Applicant Commonwealth Director of Public Prosecutions - Respondent File Number(s): 2016/132189 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2017] NSWDC 272 Date of Decision: 06 October 2017 Before: His Honour Judge Scotting

Ground 1 - The learned sentencing judge erred by expressly failing to take into account the utilitarian value of the plea of guilty in accordance with Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1

The reasons of the sentencing judge

The applicant was sentenced on 6 October 2017 prior to the judgment of this Court in Xiao v R (Xiao) [5] which was delivered on 5 February 2018. In addressing the applicant's plea of guilty, the sentencing judge said the following: [6] The offender pleaded guilty. For Commonwealth offences the Court must consider the offender's willingness to facilitate course [sic] of justice and not the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58]. The Crown case was a strong one. The offender's plea has saved the need for witnesses to be called at trial and that can be taken into account: Cameron at [79]. I am satisfied that the offender's plea was an indication of his assistance to the authorities, an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.

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