Gershuny v R; Ruiz v R

Court of Criminal Appeal (NSW)|2020-02-07|Before: McCallum JA, Adamson J, Beech-Jones J, Callum JA, Jones J

Solicitors: Legal Aid NSW (Applicants) Commonwealth DPP (Respondent) File Number(s): 2015/327239; 2015/327241 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 9 December 2016; 27 January 2017 Before: Williams SC DCJ File Number(s): 2015/327239; 2015/327241

Background Facts

Messrs Diaz, Ruiz and Gershuny are all foreign nationals who were apprehended by Australian Border Force ("ABF") officers who boarded the cruise ship, the MV Costa Luminosa, on the morning of 6 November 2015, when it was approximately twelve nautical miles from Sydney Harbour. Each of them was apprehended and found to be in possession of an amount of cocaine. Although they were aboard the same ship, and their offending appeared to be relevantly identical (and co-ordinated), they were not charged as co‑offenders. They were all sentenced by his Honour Judge Williams SC DCJ.
A separate agreed statement of facts was placed before the sentencing judge for each of the three offenders. In the case of Mr Gershuny, the agreed facts record that within his cabin the ABF officers located four white sports shoes and two pairs of bike shorts which exuded a chemical odour and were noticed to be heavier than usual. Forensic examination revealed that between the inner sole and sole of the shoes were eight packages of white powder. Secreted within the shorts were twenty-eight packages also containing white powder. The total net weight of the powder was just over 4.5kg. Testing revealed that the cocaine had a purity of 82.7% and the total pure weight of cocaine was just over 3.75kg.
Mr Gershuny was a citizen of the United States of America who resided in Colombia. The ship's records indicated that he had embarked in Barcelona on 16 September 2015 and was due to disembark on 21 November 2015 in Singapore. The purchase price of the ticket on the cruise ship was just under US$19,000.
In his evidence before the sentencing judge, Mr Gershuny stated that he had agreed to be paid to be a courier for the drugs into Australia after he had money stolen from his business venture. The sentencing judge recorded Mr Gershuny asserting that "people approached him asking him to repay the debt or make arrangements to repay the debt with a threat that if he did not get involved in this drug courier's role, then harm would come to his daughter". The sentencing judge did not accept that he acted under duress but appears to otherwise have accepted that his role was confined to that as a paid courier in the manner Mr Gershuny asserted.
The agreed facts concerning Mr Ruiz were not relevantly different. He was staying in a different cabin which when searched by ABF officers was found to contain a pair of black shoes and a pair of bike shorts that were "unusually heavy". The forensic testing also revealed eight packages of white powder between the inner sole and sole of the shoes and the shorts also contained twenty-eight packages of white powder. The net weight of the powder was just over 4.5kg, it had a purity of 78.7% and contained a pure weight of cocaine of just under 3.55kg. Like Mr Gershuny, Mr Ruiz embarked on the cruise from Barcelona in September 2015. When the Australian Federal Police (the "AFP") attended at his cabin to arrest him, he was asked what the purpose of his trip to Australia was. He stated "I don't know. Just can't believe this. Stupid, I guess, gambling debts from back home".
Mr Ruiz participated in a record of interview with the AFP after he was arrested. During that interview he stated that he was a citizen of the USA and resided in New York. He said he was employed as a window installer and earnt between US$700 to US$3,000 per week. He stated he was not sure what particular drug was located in his room but he knew it was present and that it was an illegal drug. He said he had come on the ship for a holiday and understood that when he arrived in Sydney he was supposed to disembark wearing the clothing containing the narcotics and that someone would approach him to collect the cocaine. He said that he became involved in the offence because he owed gambling debts from betting on sporting events. He said that while travelling back and forth to Colombia he had been threatened by his creditors and required to carry the drugs. The sentencing judge recorded that the CDPP did not challenge the various assertions made in the record of interview as to how Mr Ruiz came to offend.
In Diaz v R [2019] NSWCCA 216 ("Diaz"), Button J described the facts surrounding Mr Diaz's offending. As noted, he was on the same ship and was in possession of approximately 3.5kg of pure cocaine that had been secreted in the same way, namely in clothes and shoes (Diaz at [13] to [15]). Mr Diaz was a citizen of the USA who had been living in Colombia. He confessed that he was to receive US$10,000 for bringing the cocaine into Australia.

Sentencing Judgments

Mr Ruiz was sentenced on 9 December 2016. Messrs Diaz and Gershuny were sentenced together on 27 January 2017.
In his sentencing judgment concerning Mr Ruiz, his Honour described the facts of Mr Ruiz's offending and then addressed the various factors relevant to the sentencing process. The following five matters should be noted.
First, his Honour accepted that Mr Ruiz's role was that of a courier although it was also found that he was part of a "sophisticated operation in which he enjoyed the benefit of a lengthy cruise for some months before coming to Australia". Having regard to that, and the quantity of drugs involved, his Honour described the offence as towards the "lower end of the range [for this offence] but not amongst the lowest in my view".
Second, his Honour accepted Mr Ruiz had demonstrated genuine contrition, as well as "great insight and remorse into his offending behaviour".
Third, his Honour concluded Mr Ruiz has "very strong prospects of rehabilitation". His Honour appeared to accept a Corrective Services assessment that Mr Ruiz had a "low risk of offending".
Fourth, in relation to Mr Ruiz's plea of guilty his Honour stated: "… his willingness to assist in the administration of justice by [his] early plea, notwithstanding that it was ultimately in the face of what was a strong Crown case, entitles him to a discount of 25% on the term of imprisonment that would otherwise be imposed."
Fifth, his Honour addressed the issue of parity between Mr Ruiz on the one hand and Messrs Diaz and Gershuny on the other hand. His Honour stated: "The Crown submissions refer to issues of parity [with] the other two offenders Diaz and Gershuny [who] were apprehended on the same ship and in possession of similar amounts of cocaine concealed in a similar manner. But these two gentlemen who were to be sentenced by me today have asked for their cases to be adjourned so no question of parity arises at the moment, although it will or course when I come to the sentencing for them in January 2017."
The reference to the Crown's submissions in relation to parity was to a contention by the Crown in its written submissions that parity between the three offenders was a relevant consideration even though Messrs Gershury, Ruiz and Diaz were not strictly co‑offenders. The Crown submitted that the "only apparent distinguishing factors between the Offenders are their level of remorse and their individual subjective circumstances".
In relation to Mr Gershuny, as noted he was sentenced along with Mr Diaz in January 2017. I have already described his Honour's rejection of Mr Gershuny's contention that he was under duress to act as a courier. His Honour also did not accept an assertion by Mr Gershuny that he did not have any idea of the value of the drugs that he was carrying. Otherwise, his Honour made a similar finding as to Mr Gershuny's role as a courier to that of Mr Ruiz. Like Mr Ruiz, his Honour accepted that Mr Gershuny had demonstrated remorse. His Honour found that he had also shown significant signs of rehabilitation.
At the time of sentencing Mr Gershuny was 50 years of age. He had disclosed in his evidence that he had a conviction for dealing in cannabis some twenty years prior. In relation to Mr Gershuny's plea of guilty, his Honour stated: "I take into account his demonstration of contrition by way of a plea of guilty to the charge, not in the way set out by New South Wales courts in R v Thompson and Houlton (2000) 49 NSWLR 383 but recognising that a discount is appropriate for the demonstration of genuine remorse, acceptance of responsibility and a willingness to facilitate the course of justice."
In relation to Mr Diaz, I have already summarised the relevant circumstances surrounding his offences. At the time of sentencing Mr Diaz was 62 years old.. His Honour accepted Mr Diaz's expressions of remorse and regret and noted that he had no prior convictions. His Honour also noted his family support in the USA and his good work record in custody. His Honour made no express reference to Mr Diaz's plea but, as explained below, it is common ground that it was treated in the same way as those entered by Mr Ruiz and Mr Gershuny.
One aspect of Mr Diaz's prison history should be noted. The sentencing judge observed that in October 2016 Mr Diaz had requested to be moved to protective custody in gaol because he feared reprisals from inmates after he had collected contraband items from the visiting area at the gaol. In that regard, his Honour stated as follows: "… in the absence of any evidence as to the likely length of the period that [Mr Diaz] will spend in [the protective custody section at Parklea] or in that facility, and the absence of evidence of any continuing threat to him, I do not think that any question of hardship by reason of serving part of a sentence in protective custody is sufficient to sound significantly, or at all, in the sentence to be imposed."
As noted, the end result was that the sentencing judge imposed the same sentence on each offender. Implicit in that approach is that his Honour regarded both the objective circumstances of their offending and their subjective cases as not justifying differential treatment. This approach was entirely consistent with the CDPP submission noted above.

Mr Diaz's Appeal

In Xiao v R (2018) 96 NSWLR 1 at [278], this Court found that in sentencing proceedings governed by s 16A of the Crimes Act 1914 (Cth), a sentencing judge is entitled to take into account the utilitarian value of a plea of guilty. Their Honours concluded that, to the extent that cases such as Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 and other cases which followed it provided to the contrary, they should not be followed. The effect of Tyler was that, unlike the position with respect to sentencing State offences in New South Wales (see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309), a sentencing judge considering the effect of a plea of guilty by an offender to a federal offence could do so by reference to the willingness of the offender to facilitate the course of justice but not on the basis that the plea had saved the community the expense of a contested hearing (Tyler at [110] per Simpson J).
In Diaz, this Court found that the sentence of Mr Diaz was affected by error of the kind identified in Xiao, namely, that in assessing a discount on the sentence imposed on Mr Diaz on account of his plea of guilty, the sentencing judge had confined its relevance to an assessment of the subjective willingness of the offender to facilitate the administration of justice and not extended the consideration of the plea to its utilitarian value (Diaz at [76] to [78] per Button J with whom Gleeson JA and Lonergan J agreed). In Diaz, Button J recognised that there was no express consideration in the sentencing judge's reasons of whether a discount for a plea was afforded to Mr Diaz, but inferred that it was given for the same reasons as was stated in relation to Mr Gershuny and Mr Ruiz (at [76] and [78]). His Honour concluded that "in short, the discount that was explicitly given to Mr Ruiz and Mr Gershuny, and implicitly given to the applicant, was indeed given for the wrong reason" (at [78]).
Further, even though Button J concluded that the quantification of the level of discount that was afforded was nevertheless "correct", his Honour still concluded that the error was such as to require the re-sentencing process to be undertaken afresh (see Diaz at [81] to [87]; Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [42] "Kentwell"). In the exercise of the discretion to re‑sentence, Button J adopted "all of the objective and subjective findings made by the sentencing judge" and added (Diaz at [89]): "With one exception, I do not take into account on resentence any of the other materials relied upon by the applicant with regard to his various grounds, because I believe that none of them substantively post-dates the imposition of sentence: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [11]. The exception is the proposition that the applicant was, after the imposition of sentence in January 2017, on protection for a period of some months until June 2017."
The reference to "the other materials" in this passage is to various evidence that Mr Diaz complained should have been before the sentencing judge but was not tendered, namely an "apology letter" (Diaz at [37] and [48]) and other evidence that his legal representatives allegedly should have but failed to adduce (Diaz at [60]). The balance of the passage refers to the period of time that Mr Diaz was "on protection" after sentencing.
After setting out the above passage, Button J noted that he had recourse to sentencing statistics and then, utilising a 25% discount on account of Mr Diaz's plea, imposed a sentence of 9 years imprisonment with a non-parole period of 4 years 6 months expiring on 5 May 2020. Thus, the total sentence imposed by this Court in Diaz was 6 months shorter than that imposed by the sentencing judge and the non-parole period was 4 months shorter.
Otherwise it is necessary to note that Mr Diaz raised an unsuccessful ground of appeal that the sentencing judge had erred in imposing the same sentence on himself, Mr Gershuny and Mr Ruiz. In rejecting that ground, Button J described their offending as the "same thing" (Diaz at [52]) and that otherwise their "objective and subjective cases … were very similar indeed" (Diaz at [46] and [53]).

Ground of Appeal: Utilitarian Value of the Plea of Guilty

Each of Mr Ruiz and Mr Gershuny raise one ground of appeal, namely, that in determining the appropriate discount to reflect the value of their pleas of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth), "[his] Honour did not have regard to the utilitarian view of the applicant's plea of guilty".
The submissions in support of that ground point to the passages from the sentencing judgments concerning Mr Ruiz and Mr Gershuny set out above and contend that, in light of Xiao, the sentencing judge failed to "take into account some material consideration" (see House v The King (1936) 55 CLR 409 at 505), namely, the utilitarian value of each applicant's plea. In its submissions, the CDPP accepted that it followed from the judgment in Diaz that this ground was made out and that, as a consequence, the discretion to re-sentence was enlivened.
I consider the CDPP's concession to be correct. The passages from the sentencing judgment make it clear that, understandably, the sentencing judge proceeded on an understanding that with Commonwealth offences a plea of guilty was to be treated in accordance with Tyler. In light of Xiao, the approach of the sentencing judge can either be characterised as a failure to take into account some material consideration or, acting upon a "wrong principle" (House id), namely, that pleas for Commonwealth offences are not to be assessed on the basis of their utilitarian value.
Accordingly, I accept ground 1 is made out in each case.

Discretion to Resentence

At the hearing of the application, evidence was read on behalf of each of Mr Ruiz and Mr Gershuny on the "usual basis", that is, as evidence of the offender's progress towards rehabilitation as well as other factors relevant to sentencing that have occurred in the period since the sentence hearing at first instance (see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; Greentree v R [2018] NSWCCA 227 at [68]).
On behalf of Mr Ruiz, an affidavit was read by his solicitor attaching documents that had been collated from his Corrective Services case management files. This material revealed that he has successfully progressed through the various prison classifications and has completed a number of courses, although the courses available to him are limited because he is a foreign national. The documents confirm that he is otherwise a trusted and valued worker within the correctional system.
Mr Ruiz swore an affidavit confirming these matters. In his affidavit he also stated that he (and other inmates) had offered to assist in firefighting during the summer period. Mr Ruiz recounts that he is a practicing Catholic and attends communion within gaol every second Thursday. He refers to his separation from his teenage son through a previous relationship and his three-year-old son from a current relationship. He describes the effect of his separation from them. He says he has few visitors and they are confined to former inmates.
Mr Gershuny swore an affidavit which was to similar effect. He described his successful progress through the prison classification system, his good work record and his completion of courses and programs. He describes his separation from his wife and daughter in Colombia and how they are supported by a friend who lives in Boston. Mr Gershuny states that he has secured work on his release at a commercial hemp plantation in California. Mr Gershuny's solicitor swore an affidavit annexing documents confirming these matters. The prison records indicated that during his time in custody he has had no family visits and only two visits from friends.
In substance, this material does no more than update the material that was before the sentencing judge and confirms his Honour's findings. Based on this material and given the significant amount of cocaine involved, I would be reluctant to impose a lower sentence on each of the applicants than was imposed at first instance, which was reasonably lenient.
However, there remains the issue of parity with the sentence imposed by this Court on Mr Diaz. The parity principle holds that there should not be a "marked disparity" between the sentences imposed on co-offenders such as to give rise to "a justifiable sense of grievance" in one of them (Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J; [1984] HCA 46). The parity principle has its foundation in the obligation of the Courts to afford "equal justice" (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, "Green"). The parity principle applies to this Court in the exercise of its sentencing function if it is otherwise minded to allow a Crown appeal against sentence (Green at [37] to [45]) or an offender's appeal against the sentence imposed on them.
The sentencing judge concluded that there was no difference in the objective and subjective case of all three offenders to warrant any differential treatment. This Court in Diaz effectively endorsed that finding and I respectfully agree. The only possible differentiating factor that now exists between Mr Diaz on the one hand and Messrs Ruiz and Gershuny on the other was raised by the CDPP on this application, namely, the period of time that Mr Diaz spent in protective custody as described above.
The Crown submitted that it may be inferred from the sentence imposed by this Court on Mr Diaz's appeal that the "additional months Mr Diaz spent in protective custody was taken into account in resentencing him" which is not relevant to [Mr Ruiz and Mr Gershuny]". I accept that this Court in Diaz took into account the additional five months that Mr Diaz spent in protective custody. However, I do not accept that this Court treated that circumstance as differentiating Mr Diaz from Messrs Ruiz and Gershuny, much less that it effectively treated that five months of protective custody as warranting a reduction of a sentence by six months (and a non-parole period of 4 months). There does not appear to have been any evidence before either the sentencing judge or this Court in Diaz demonstrating that protective custody was more burdensome than the gaol conditions experienced by Mr Ruiz and Mr Gershuny (see Diaz at [41]). No such evidence was tendered on this application. Otherwise, the sentence arrived at in Diaz was not derived by simply discounting the sentence imposed at first instance, but was instead the result of an independent exercise of the sentencing power afresh (Kentwell at [42] to [43]). In that regard the bare statement that Mr Diaz spent a further five months in protective custody was considered by this Court, but there is nothing to suggest that warranted any differential treatment of him compared to Messrs Ruiz and Gershuny. Given that all three are foreign nationals, with no local family or community ties, it can be expected that imprisonment is equally burdensome on all of them. Certainly, the contrary has not been shown.
In my view, if this Court were to not intervene and impose the same sentence on Messrs Ruiz and Gershuny, as was imposed on Mr Diaz, then they would be left with a justifiable sense of grievance.
Accordingly, in the application by Mr Gershuny the orders I propose are: (1) Leave to appeal against sentence granted. (2) Appeal upheld. (3) The sentence imposed by M L Williams SC DCJ on 27 January 2017 be set aside. (4) The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non‑parole period of 4 years 6 months, expiring on 5 May 2020.
In the application by Mr Ruiz the orders I propose are: (1) Leave to appeal against sentence granted. (2) Appeal upheld. (3) The sentence imposed by M L Williams SC DCJ on 9 December 2016 be set aside. (4) The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non‑parole period of 4 years 6 months, expiring on 5 May 2020.

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Criminal Code Act 1995(Cth)ss 11.1(1)

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