Duflaut v R [2019] NSWCCA 21 | Case summary

Court of Criminal Appeal (NSW)|2019-01-30|Before: Hoeben CJ, Wright J, Fagan J

The applicant's subjective circumstances

In order to resentence it is necessary to have regard the applicant's background and personal circumstances. He has no prior convictions either here or in France. As the learned sentencing judge noted, the absence of a criminal record is to be taken into account but can be given only limited weight because it is common that persons with clear records will be selected for a role such as he fulfilled in this case, as the minder of a courier, so as not to attract the suspicion of border officials.
The applicant has two older brothers and four half siblings from his mother's second relationship. His mother and father separated while he was in Martinique between the ages of 1 and 6 years. In his teens the applicant lived in a poor area of Paris, where crime and drug use were common, until his mother and stepfather moved the family to a better area. The applicant completed school to the equivalent of the Higher School Certificate but did not pass at that level. He then became a personal trainer and was employed in that role for 10 years with a sporting club. This employment ended 2 years before the offence as a result of the applicant suffering ligament damage to his knee. The applicant was in receipt of Social Security payments during the 2 years immediately preceding the offence. The applicant denied that he had at any time engaged in substance or alcohol abuse. He said two of his half siblings had abused drugs and one of them was diagnosed with schizophrenia, allegedly caused by drug use.
A psychologist who prepared a report for the sentence proceedings found that the applicant had no psychiatric or personality disorders nor any cognitive deficit. She thought he was at a low to moderate risk of reoffending. His Honour assessed the applicant's prospects of rehabilitation as good. We have taken into account an affidavit of the applicant sworn 9 January 2019 which describes his conduct in prison and annexes Department of Corrective Services case notes. The affidavit and case notes indicate good conduct as a prisoner and constructive use of his time in custody, undertaking work where available and engaging in educational programs. The assessment of good prospects of rehabilitation is thereby supported.

Decision on resentence

We will allow a discount of 25% for the applicant's plea of guilty, as was allowed to Ms Sintat on the hearing of her appeal (at [37]). In the applicant's case we consider that an appropriate starting point sentence would be 7 years. After applying the 25% discount his head sentence should be 5 years and 3 months. The learned sentencing judge fixed a non-parole period which was two thirds of the head sentence. We consider that proportion to be appropriate. Hence the applicant's non-parole period should be 3 years and 6 months. The Court considers that resentencing the applicant in this manner maintains a level of difference between his punishment and that of the co-offender which fairly reflects the differences in their roles. The degree of difference necessary to maintain an appropriate relationship between the respective sentences is a matter of broad discretionary judgment. It is not a matter of precise mathematical calculation capable of yielding a single correct answer.
In Ms Sintat's case, after applying a 25% discount and taking into account that the quantity of drug was 1/30 of the upper limit of a marketable quantity, this Court was of the view that the "mandatory period of imprisonment of 2 years imposed by the judge is the minimum period that [Ms Sintat] should spend in custody to appropriately reflect the criminality of the offending" (at [40]). Although the same conceded errors affected the sentences passed on both offenders at first instance, the outcome that a lesser sentence has been found warranted for the applicant but not for Ms Sintat simply reflects that, even under the influence of the two errors, his Honour fixed a moderate sentence for Ms Sintat which could not properly be further reduced.
For these reasons the orders of the Court will be: 1. Time is extended so far as necessary to permit the application for leave to appeal against sentence to proceed on its merits. 2. Leave to appeal is granted. 3. The sentence imposed in the District Court on 6 October 2017 is set aside. 4. In lieu thereof the applicant is sentenced to imprisonment for a term of 5 years and 3 months commencing on 7 August 2016 and expiring on 6 November 2021 with a non-parole period of 3 years and 6 months commencing on 7 August 2016 and expiring on 6 February 2020. The earliest date the applicant may be released to parole is 6 February 2020.

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: 13 February 2019

Judgment

THE COURT: On 15 December 2016, upon first arraignment in the District Court at Sydney, the applicant pleaded guilty to a charge that on about 7 August 2016 he did import a marketable quantity of a border controlled drug, namely cocaine, contrary to s 307.2(1) of the Criminal Code (Cth). On 29 September 2017 a sentencing hearing took place before his Honour Judge Buscombe and on 6 October 2017 the applicant was sentenced to imprisonment for 5 years and 6 months with a non-parole period of 3 years and 8 months. He now seeks leave to appeal against that sentence.
The maximum penalty for the offence is 25 years imprisonment and/or a pecuniary penalty of 5,000 penalty units ($900,000). The applicant was arrested on the day of the offence and has been in custody since. On 30 November 2016 in the Local Court he waived his right to a committal hearing. In those circumstances his entry of a plea of guilty upon arraignment before a trial date had been fixed may properly be regarded as a plea at the first opportunity. The learned sentencing judge allowed an unspecified discount for the plea. The sentence was passed before this Court handed down its decisions in Xiao v R [2018] NSWCCA 4 and Jinde Huang aka Wei Liu v R [2018] NSWCCA 70. In discounting the applicant's sentence the learned judge did not allow for the purely utilitarian value of the plea.
The amount of pure cocaine imported was 63.5 g. The statutory range of a marketable quantity is from 2 g to 2 kg. Hence the amount which was the subject of this charge was approximately 1/30 of the upper limit. In his Honour's remarks on sentence he referred to the amount as "a little less than one third of the upper limit".
A co-offender, Ms Delphine Sintat, was involved in the importation. She was also sentenced by his Honour on 6 October 2017. A term of 3 years imprisonment was imposed with an order for release on recognizance after 2 years. Her appeal against sentence was dismissed by this Court on 25 July 2018: Sintat v R [2018] NSWCCA 165.
The grounds of appeal for which leave is now sought by the applicant Cedric Duflaut are as follows: 1 His Honour erred in not allowing a discount for the utilitarian value of the plea of guilty. 2 His Honour erred in the manner in which he dealt with the weight of the border controlled drug. 3 The marked disparity in the sentences between the co-offender, Ms Sintat, and the appellant are such as to give rise to a justifiable sense of grievance.

Duflaut v R

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