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[2018] NSWCCA 55
Court of Criminal Appeal (NSW)
2018-03-07
Payne JA, Johnson J, Campbell J, Campbell JJ
Original judgment source is linked above.
HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to importing a commercial quantity of a border controlled drug, namely, methamphetamine, contrary to s 307.1 of the Criminal Code Act 1995 (Cth). The sentencing judge imposed a sentence of imprisonment of 12 years with a non-parole period of 7 years. In sentencing the applicant, the sentencing judge did not take into account utilitarian considerations when allowing a discount for the applicant's plea of guilty. The applicant sought leave to appeal against sentence. The issues on appeal were: (i) whether the sentencing judge erred in not taking into account utilitarian considerations when allowing a 10 per cent discount for the applicant's plea of guilty; and (ii) upon any re-sentence, what the appropriate sentence for the applicant should be. The Court (Payne JA, Johnson and Campbell JJ), dismissing the appeal, held: In relation to the first issue, (per Payne JA at [25] and [28], Johnson and Campbell JJ agreeing at [82] and [83] respectively): In Xiao v R [2018] NSWCCA 4, which was delivered after the sentencing judge had delivered her decision, a 5 member bench of this Court held that the utilitarian value of the plea of guilty should be taken into account in addition to any relevant subjective factors such as contrition or remorse. Earlier authority to the contrary was not followed. The Crown accepted that this ground was established and that it would thus be necessary for this Court to itself sentence the applicant. Xiao v R [2018] NSWCCA 4, Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 applied. In relation to the second issue, (per Payne JA at [32]-[79], Johnson and Campbell JJ agreeing at [82] and [83] respectively): The applicant is to be sentenced for the offence against Commonwealth law and the Court is required to apply the terms of Part 1B of the Crimes Act 1914 (Cth). The governing principle under s 16A(1) of the Crimes Act is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. The Court must consider the matters identified in s 16A(2) of the Crimes Act, to the extent that they are relevant. In relation to the nature and circumstances of the offence (per s 16A(2)(a)), the applicant was the central person in the importation hierarchy at the Australian end of the illegal importation. There was a significant degree of planning by the applicant in the importation of the 17.4 kilograms of methamphetamine. It is not possible on the evidence to identify the financial reward the applicant was to receive for his participation in the importation. Nor, beyond the finding made that the applicant participated for profit, is it necessary to do so. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271, R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106, Wang v R [2010] NSWCCA 319, Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365, R (Cth) v Yuan [2015] NSWCCA 198; 252 A Crim R 422, R v Constant [2016] SASCFC 87; 126 SASR 1, R v Scott [2017] SASCFC 96 and R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 applied. In relation to the extent to which the applicant has shown contrition for the offence by making reparation or "in any other manner" (s 16A(2)(f)), the applicant did not give evidence on sentence, although a letter written by him was tendered. A psychologist's report saying "he also took responsibility and appeared remorseful for his actions" was tendered. The extent to which the applicant has shown contrition is limited, but must be taken into account in his favour in fixing an appropriate sentence. In relation to the applicant's guilty plea (per s 16A(2)(g)), the applicant is entitled to a utilitarian discount for his guilty plea. Given the late stage at which the plea was entered, the utilitarian benefit entitled the applicant to a discount of 10 per cent from the sentence which would otherwise have been imposed. Xiao v R [2018] NSWCCA 4 applied. In relation to the need for adequate punishment (per s 16A(2)(k)), a lengthy period of imprisonment is the only appropriate sentence in the circumstances. The offending is very serious. The applicant took a risk that his offending would not be detected and took deliberate steps to hide his involvement in the importation. Saab v The Queen [2012] VSCA 165, DPP (Cth) v Peng [2014] VSCA 128 and R v Tam [2013] WASCSR 226 and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 considered. No lesser sentence was warranted in law than a sentence of imprisonment of 12 years with a non-parole period of 7 years.
Judgment
Relevant facts
The remarks on sentence
Appeal to this Court
Ground 3
Sentence
Nature and circumstances of the offence: s 16A(2)(a)
Personal circumstances of the offender: s 16A(2)(d)
The extent to which the applicant has shown contrition for the offence by making reparation or "in any other manner": s 16A(2)(f)
Guilty plea: s 16A(2)(g)
Cooperation with law enforcement agencies: s 16A(2)(h)
Specific and general deterrence: s 16A(2)(j) and (ja)
Need for adequate punishment: s 16A(2)(k)
Character, age, antecedents, means and physical and mental condition of the applicant: s 16A(2)(m)
Prospect of rehabilitation - s 16A(2)(n)
Conclusion and orders
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: 06 April 2018
Obiekwe
R
[2014] VSCA 128
[2016] SASCFC 87
[2017] SASCFC 96
[2012] VSCA 165
[2005] HCA 25
(2014) 252 CLR 601
(2010) 242 CLR 520
(1999) 199 CLR 270
(2005) 228 CLR 357