Estevez v R

Application for leave to appeal and for an extension of time

1. The applicant's notice of application for leave to appeal and notice of application for extension of time were filed on 20 April 2020. The proposed grounds of appeal were as follows: "1. Xiao error: That in determining the appropriate discount to reflect the value of the Applicant's plea of guilty in accordance with s. 16A(2)(g) Crimes Act 1914 (Cth), the sentencing Judge did not have regard to the utilitarian value of the Applicant's plea of Guilty; and 2. Error in calculation: The sentencing Judge erred in the final calculation of the sentence in that the sentence was discounted by 25% only where her Honour had stated that the discount that would be afforded to the Applicant would be in the range of 30 - 35% (for his plea and assistance)."
2. Having regard to the nature of the grounds of appeal, the circumstances explained in the affidavits of the applicant affirmed 15 April 2020, Mr Stephen Eccleshall affirmed 15 April 2020 and Ms Suzanne Knowles affirmed 20 April 2020, the parties' submissions and the fact that the Crown did not oppose the extension of time being granted, it appears to me that in this case the interests of justice require the granting of the extension of time sought. An order should be made accordingly.
3. In order to consider the grounds of appeal and whether leave to appeal should be granted, it is necessary to review her Honour's remarks on sentence in some detail.

Remarks on sentence

1. The learned sentencing judge commenced her remarks by noting the applicant's plea of guilty and that the offence contrary to s 307.1(1) of the Criminal Code carries a maximum penalty of life imprisonment and a fine.
2. Based on the agreed statement of facts before the Court, her Honour accepted that the applicant was a citizen of the United States who arrived at Sydney airport on a tourist Visa. On his passenger card he declared that he intended to stay in Australia for six days on a holiday and that he was not bringing any prohibited substance, including illicit drugs, into Australia. After passing through immigration, he was asked a number of questions by Customs authorities and his suitcase was x-rayed. He told the officer that he lived in the United States, that he had packed his own luggage and that he had gone to his brother's wedding in another country two days before coming to Australia via a third country. Anomalies were noticed in the X-ray of the suitcase and a presumptive test on the back of the suitcase returned a positive result for cocaine. Eventually, Customs officers discovered in the suitcase a white substance inside a clear plastic container and the substance tested positive for cocaine.
3. The applicant was cautioned and interviewed. In that interview the applicant stated that someone had given him the suitcase in the country where his brother's wedding had taken place and that he did not know what was in it. The Customs officers handed the matter over to the Australian Federal Police who conducted a formal interview. During that interview the applicant said that he did not know the cocaine was in his bag and that he had met a person on Facebook two or three days before he arrived in the country where his brother was married. He claimed that he told that person that the wheels on his suitcase were broken, that he had been drinking with that person on the beach and started to feel sick. As a result he gave the person $50 to buy a new bag and then went to sleep. He said that later he was woken by the person so he would be ready for the flight and he had a shower while his bag was packed for him. He also said that he was told by the person that someone would come to his hotel in Australia to be with him and show him around Sydney. The applicant told the AFP officers that he thought he had been set up by these people to transport the cocaine to Australia. Her Honour noted that by his plea of guilty, the applicant conceded that these explanations to the AFP were not the truth.
4. The applicant's mobile telephone was seized by the AFP and a number of WhatsApp messages from the three preceding weeks were downloaded. Tupman DCJ accepted from those messages that the applicant was involved with another person in a plan to import approximately 3.6 kg of cocaine into Australia, with the planning commencing as early as three weeks prior to his arrival in this country. In particular, there was a message where the applicant referred to weighing a substance which her Honour inferred was a reference to the cocaine which he knew he was importing into Australia.
5. The substance found in the suitcase was analysed. It was found to weigh approximately 3.8 kg and to be the equivalent of 2.5393 kg of pure cocaine. At about the time of the importation, the wholesale value of that quantity of cocaine was $761,420 and, if sold on the street in street deal quantities, the value was a little over $2 million.
6. The applicant was bail refused from the time of his arrest and remained in custody from that date.
7. It was noted that the applicant had no criminal convictions in Australia, but he had also never been to Australia before the commission of the offence.
8. After referring to the provisions of Part 1B of the Crimes Act 1914, her Honour expressed the view that only a term of full-time custody would suffice as the appropriate sentence for the matter and recorded that the applicant accepted this to be the case.
9. For the purposes of s 16A of the Crimes Act, Tupman DCJ determined the nature and circumstances of the offence and thus its objective seriousness. Her Honour noted the maximum penalty of life imprisonment for this type of offence and the need to send a message of general deterrence for those who would engage in such behaviour. For the purposes of assessing the objective seriousness of the particular offence and the applicant's moral culpability, the applicant's role was considered in light of the agreed facts and the report from a psychologist, Ms Durkin, which was tendered on behalf of the applicant.
10. The applicant gave evidence on sentence and confirmed the truth of the history he had given to the psychologist. Her Honour accepted that, at the time the applicant committed the offence, he was a drug user himself, that he had accumulated a debt to his drug dealer and that he agreed to import the cocaine into Australia in return for a promised amount of $10,000 which would clear his drug debt at that stage. It was also accepted that the applicant never received that amount because he was arrested. It was not accepted, however, that the offence was committed under some form of duress or pressure imposed from his drug dealer. It was found not to be a case in which non-exculpatory duress ought to be taken into account to reduce what might otherwise be the appropriate sentence.
11. Her Honour found the applicant's evidence on sentence to be unconvincing from time to time. Further, based on the WhatsApp messages, it was concluded that the applicant was planning the importation for at least about three weeks and the communications between him and one of the other persons involved gave the impression that he was a willing participant not just a last-minute recruit as a mere courier. She accepted that he made a conscious decision to engage in the conduct and obviously was sufficiently well trusted by those who were higher up in the syndicate to be in possession of the very valuable commodity to be handed over in Australia to another person. While his role was found to be one of a courier it was not as "a mere courier with no prior knowledge or specific knowledge".
12. After reiterating the relevant findings, her Honour's conclusion was that the offence was "slightly below the midrange in terms of objective seriousness" for offences capable of being charged under the section in question and "in the bottom half of the range" as the quantity was not particularly high.
13. In relation to the plea of guilty, the sentencing judge said: "The offender entered a plea of guilty at what I accept to be the earliest opportunity in the Local Court, despite what he told the AFP at the time of his arrest. … It represents a willingness on the part of the offender to facilitate the course of justice and also indicates some remorse and contrition on his part. The fact and timing of the plea of guilty are both matters I will take into account when determining the appropriate length of the sentence by imposing a lower sentence than would be appropriate if there had either been no plea of guilty or a plea of guilty entered late. The case against him, however, was relatively strong. That having been said, the Court generally, and this Court presided over by this judge in particular, has on more than one occasion seen a jury acquit an accused charged with this exact offence after giving evidence under oath containing explanations for being in possession of drugs such as this when coming into the country that were very similar to, or perhaps even less inculpatory than for this offender. It is usually very difficult, if not impossible, for the AFP or other authorities to check any of the details given in explanations such as that when the events are alleged to have occurred overseas. So the plea of guilty does indicate a willingness to facilitate the course of justice in the experience of this Court."
14. Next, the learned sentencing judge referred to s 16A(2)(h) and the requirement to take into account any assistance provided to authorities. Her Honour referred to the material in exhibit B and accepted that there had been some assistance to authorities after arrest. She also accepted the opinion expressed in exhibit B that the value of the assistance was low in the circumstances. Nonetheless, it was found that it had some value and was also further evidence of contrition. On those bases, it was held that there should be a further reduction in the sentence to reflect this but, in her Honour's view, the reduction should be of "relatively modest compass". Her Honour went on to say: "it is not necessary in a Commonwealth sentence to identify a percentage discount in the way it would be for State offences, but I indicate when determining the appropriate sentence in this matter I will be applying a discount of somewhere between 30% and 35% in total from the starting point to reflect a combination of the plea of guilty and the assistance factors to which I have referred."
15. The learned sentencing judge next considered the applicant's general subjective circumstances. The Court said that it gave great weight to issues of rehabilitation as the applicant was a relatively young person. It was noted that he had no prior convictions Australia, but he had never been to Australia before. The applicant had informed the psychologist that he had a history in the United States including incarceration for drug related offending. On that basis, he was not entitled to be treated as a person of prior good character, which, had it been available, might have reduced the otherwise appropriate sentence.
16. It was accepted that the applicant was born in the United States but was from an overseas background. His parents union had broken down before he was born and his mother was dependent on illicit drugs and he had very little contact with his father. His family removed him from the care of his parents and sent him back overseas to be cared for by his paternal grandparents. He was well cared for by them and had an ongoing positive relationship with his grandmother in particular, but they were quite economically disadvantaged and his father provided limited financial support for him. While overseas he had regular contact with the brothers of his father who used to assault him physically and detain him in his room, including on one occasion in a cage. This abuse led to at least one attempted suicide. As a teenager in response to his dysfunctional life he started to mix with other similar young people who engaged in drug use and theft. Once his grandmother became aware of this she sent him back to the United States to live with his father when the applicant was 17.
17. He left home when he was 19 and moved to live in New York where he started to mix with what he described as "antisocial party circles" and continued to use drugs. He continues to have contact with his grandmother and, until the time of his arrest, had been providing some financial support for his grandparents.
18. The applicant has limited formal education and has only rarely worked in paid employment. When he was 17, he started smoking cannabis and that escalated quickly and continued until his arrest. He also started using heroin at the age of 17 and was smoking 10 g a day until he was about 22 when he stopped. During that same period he was using about 1 g of ecstasy every two weeks and some other drugs. He then started to use crack cocaine in 2014 and was smoking that daily between 2014 and 2016, up to the time he was arrested. The applicant claimed to have started using drugs to escape the traumatic memories of his childhood. He commenced, but did not complete, a drug rehabilitation program in 2015. Her Honour accepted, more probably than not, that the applicant had stopped using drugs whilst in custody, but said that it appeared that he has never successfully engaged in drug rehabilitation treatment. However, it was noted that he was willing to do so. Her Honour also observed that his prospects of rehabilitation would be enhanced if he were able to engage in some form of drug rehabilitation whilst he remained in custody and once he is released to the community on parole.
19. It was also accepted that, as a significant user of drugs, he had a relatively large drug debt and committed the offence in question for financial gain to pay off that debt.
20. Her Honour also accepted, based on the psychological report and the applicant's evidence, that he does feel genuine remorse and contrition for committing the offence and has shown some insight into the seriousness of his offending, particularly his feelings of regret for the impact this offending has had on his grandparents whom he is no longer able to support financially.
21. It was accepted that the applicant showed some symptoms of post-traumatic stress disorder arising from the treatment by his uncles as a teenager and it was accepted that he has used drugs to lessen the impact of those symptoms. Her Honour also said that there was some connection between the offending and his post-traumatic stress disorder. However, in her view, this was not of the type which had any impact on the appropriate length of the sentence that ought to be imposed.
22. Tupman DCJ found that the applicant's prospects of rehabilitation were reasonable but would improve if he were given access to treatment programs whilst he remained in custody and ultimately when he returned to the community, wherever that might be, on parole. It was also said that his prospects of rehabilitation were entirely dependent on his remaining free of drugs and also receiving treatment for post-traumatic stress disorder.
23. Her Honour found that the applicant has a four-month-old daughter whom he has never met and with whom he hopes to have some involvement in due course when he is returned to the United States on his release to parole. Otherwise, there was no evidence from which any finding could be made in relation to the impact of the sentence on his family.
24. After reiterating her intention to reduce what would otherwise be the appropriate sentence by between 30% to 35% to take into account the combined discounts, as well as some of her other findings and reasoning, the sentencing judge concluded that on her assessment of objective criminality and taking into account the subjective case, a starting point for the overall term of about 12 years was called for. Then, it was said: "I have, thus, determined, after taking into account the discounts, to impose a sentence of 9 years overall and I will impose a period of 6 years as a non-parole period being the term which in my view is required to take into account the objective criminality."
25. The sentence referred to above was accordingly imposed.
26. It can be noted that, with a starting point of 12 years, the sentence of 9 years represents a discount of 25%, not a discount between 30% and 35%.

First ground of appeal

1. The first ground of appeal raised what was called "Xiao error", namely that in determining the appropriate discount in light of the applicant's plea of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth), the sentencing judge failed to have regard to the utilitarian value of the plea. In Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, this Court considered whether, in sentencing a federal offender, it was relevant for a sentencing judge to take into account the utilitarian benefit of a plea of guilty. At [278], the Court (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J, and Bellew J) concluded that in such a case, a sentencing judge was entitled to take such utilitarian benefit into account. Further, at [281], it was held that, by failing to have regard to the utilitarian value of the plea, the sentencing judge in that case had fallen into error.
2. It should be noted that the sentence in the present case was imposed before the decision in Xiao and, at that time, the prevailing understanding of the operation of s 16A(2)(g) was that the utilitarian value of the plea could not of itself be taken into account in mitigation of a sentence in respect of Commonwealth offences, see Bae v R [2020] NSWCCA 35 at [48].
3. In addition, it can be noted that the Crown's written submissions to the learned sentencing judge included the submission that: "It is not permissible to give any discount for a federal sentence upon the objective basis that the plea has saved the community the expense of a contested hearing, because that constitutes a forbidden penalty for exercising the right to trial. This means that the utilitarian discount identified in Thompson & Houlton at [160 (iii)] as a range of 10 to 25% cannot have any application to federal sentencing. The Crown notes the recent contrary view by the Victorian CCA [sic] that the utilitarian discount does have application."
4. The Crown conceded that the first ground of appeal had been made out.
5. In the passage from the remarks on sentence quoted above, her Honour referred to the applicant's plea of guilty at the earliest opportunity and found that it indicated both a willingness on the part of the applicant to facilitate the course of justice and some remorse and contrition. Thus, the fact and timing of the plea of guilty were taken into account. However, the utilitarian value of the plea was not expressly referred to and, in all the circumstances, I am satisfied that, in accordance with the prevailing understanding of the operation of s 16A(2)(g) at that time, her Honour did not take the utilitarian value of the plea into account.
6. Accordingly, I accept that the Crown's concession was properly made and that the first ground of appeal has been made out.

Second ground of appeal

1. The second ground of appeal was that there was an error in the final calculation of the sentence because, instead of the starting point for the sentence being discounted by between 30 to 35%, the sentence was only discounted by 25%, from 12 years to 9 years.
2. The Crown also conceded that this ground of appeal had been made out. Having regard to her Honour's figures, it is beyond dispute that the intended discount was not applied and that as a result the applicant was sentenced to a significantly longer sentence than the sentencing judge indicated was appropriate in the circumstances. As a result, I am satisfied that the Crown's concession was properly made in relation to this ground.
3. Thus, the second ground of appeal has also been made out.

Resentencing

1. As error has been established, leave to appeal should be granted and the matter is to be dealt with in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW), which provides: "On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
2. Thus, it is necessary to consider whether, in the exercise of its discretion, the Court is satisfied that no other (generally lesser) sentence is warranted in law: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 (DL) at [9].
3. In exercising this discretion, the Court is required, not to assess whether and to what degree the errors influenced the original sentences but, rather, to exercise the discretion afresh, taking into account the purposes of sentencing and the factors required by law to be considered: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ) and [47] (Gageler J).
4. Exceptional circumstances apart (and there is none in the present case), the appropriate sentence is to be determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of post-sentence conduct: DL at [9].
5. In the present case, the learned sentencing judge's findings on sentence were not challenged and have been sufficiently set out above, where the remarks on sentence have been considered. In addition to the material before Tupman DCJ, the applicant also relied in this Court upon: 1. an affidavit from the applicant affirmed 5 May 2020; and 2. an affidavit of Ms Suzanne Knowles affirmed 5 May 2020, which provided documentary support for the matters covered in the applicant's affidavit.
6. I generally accept that evidence in those affidavits but note that some of the events recounted occurred before the applicant was sentenced by Tupman DCJ in October 2017.
7. The applicant's affidavit included: 1. expressions of his being truly sorry for having committed the offence and his recognition that it was a stupid decision to do what he did; 2. a statement that he understands the harm that drugs can do to the community and his regret for the suffering that his crime did and could have caused in the community; 3. information concerning his work while in custody, including as a sweeper, and an explanation of why he refused to go back to his previous work as a textile sewer, where he experienced allergic reactions to the dust, and consequently lost his C2 classification and one out cell privilege; 4. the fact that he had completed a painting course and the general lack of programs for foreigners in gaol; 5. explanations for the punishments and offences appearing on his custodial history; 6. information as to being threatened by other inmates and an assault in June 2017; 7. information as to his health and treatment while in custody including in relation to insomnia, depression, anxiety, allergic reactions and loss of sight in his right eye; 8. his relationship with his family and his intention to return to live with his grandmother in the United States when he is released and the impact of COVID-19 on his family in the United States, where his great uncle and some friends have died as a result of the pandemic; and 9. the fact that he has a good routine now, keeps healthy and says that he does not "touch any drugs or anything anymore".
8. In this case, it is necessary to consider in particular the extent of any discount to be given in respect of the applicant's plea of guilty and the assistance provided by him to law enforcement agencies. While it may be appropriate in many cases to specify a combined discount for both a plea and assistance, given the grounds of appeal in the present case, it seems to be helpful to specify separately the amounts which make up the combined discount that I think is appropriate.
9. Section 16A(2)(g) of the Commonwealth Crimes Act requires the Court to take into account the fact that the applicant pleaded guilty. In fact, he pleaded guilty at the earliest opportunity. The relevant principles and their application have been considered in detail recently by Johnson J (Bell P and Walton J agreeing) in Bae v R [2020] NSWCCA 35 at [48] to [59]. Although the circumstances were different in that the appellant in that case did not plead guilty until after the first trial date had been vacated and shortly before the second trial date, I gratefully adopt Johnson J's exposition of the principles. In the circumstances of this case, a discount of 25% should be allowed for the applicant's early plea of guilty.
10. Under s 16A(2)(h) of the Crimes Act, the degree to which an offender has co-operated with law enforcement agencies in the investigation of the offence or other offences in the past, is also a matter to be taken into account on sentencing: R v Vo; R v Tran [2006] NSWCCA 165 at [36]. The considerations which are relevant in assessing the extent of a discount for such assistance include the effectiveness of the assistance given and its worth or value to the authorities: R v El Hani [2004] NSWCCA 162 at [73]; R v Barrientos [1999] NSWCCA 1 at [47]. Although a customary range of 20 to 50 % (often as a combined discount for a plea of guilty and assistance) has been identified in a number of cases including, for example, El Hani at [71], the worth of the assistance may take it below that range: Barrientos at [47].
11. As to the discount that should be allowed in the present case because of the assistance provided by the applicant to law enforcement agencies in the investigation of the offence or of other offences, I have had regard to the information provided in exhibit B and accept, as did the sentencing judge, that the applicant provided relevant assistance after his arrest. The value of the assistance is, however, to be characterised as low, in the circumstances, and does not include future assistance which might fall within s 16AC of the Crimes Act. Having regard to the nature and value of the assistance in the present case, I am of the view that a discount of a further 8⅓% should be added to the 25% discount for the plea of guilty to reflect the degree of co-operation with law enforcement agencies. The total combined discount to be applied for the plea of guilty and past assistance to law enforcement agencies should, accordingly, be 33⅓%.
12. The finding that the offending was "slightly below the midrange in terms of objective seriousness" was unchallenged and appears to me to be, in any event, correct.
13. As to the applicant's subjective case, I have taken into account the material before the sentencing judge, including the applicant's evidence, the report of the psychologist, Ms Durkin, the letters from the mother of the applicant's child and from his family, and her Honour's relevant unchallenged findings which have been set out above. In addition, I have considered the further evidence put before this Court and accept that the applicant is likely to have stopped using drugs while in custody, that his remorse and contrition are genuine, that he has used his time in custody to work and to participate in the courses available to him and that his insight into his offending has increased. I also am satisfied that his prospects of rehabilitation are likely to have improved.
14. Nonetheless and in all the circumstances, no sentence other than a sentence of imprisonment is appropriate given the nature of the offending, the maximum penalty prescribed for the offence, the substantial quantity of drugs involved, the willing participation of the applicant in the offending, the harm to the community caused by drugs and the need for general and specific deterrence, among other relevant factors.
15. Having undertaken the task required by Kentwell v The Queen and having had regard to the requirements of s 16A of the Crimes Act and the relevant principles concerning sentencing, it appears to me that the starting point should be a sentence of imprisonment for 10 years 6 months. When the discount of 33⅓% is applied, this produces a sentence of 7 years. A non-parole period of 4 years 8 months is, in my view, appropriate in the circumstances of the present case. The sentence should commence on 10 November 2016. Accordingly, the sentence would expire on 9 November 2023 and the non-parole period would expire on 9 July 2021.
16. As the applicant is expected to be deported when he is released on parole, no purpose will be served by explaining the effect of release on parole for the purposes of s 16F of the Crimes Act.
17. Thus, I am satisfied that a lesser sentence than that imposed by the District Court is warranted in law. Accordingly, the sentence of the District Court should be quashed and a fresh sentence should be imposed.

Orders

1. For these reasons, I propose that the Court should order as follows: 1. Extend the time for the filing of the notice of application for leave to appeal to 20 April 2020. 2. Grant the applicant leave to appeal against sentence. 3. Allow the appeal against sentence. 4. Quash the sentence imposed by the District Court on 31 October 2017. 5. Sentence the applicant to a term of imprisonment of 7 years commencing on 10 November 2016 and expiring on 9 November 2023 with a non-parole period of 4 years 8 months expiring on 9 July 2021.
2. WILSON J: I agree with Wright J.

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