Urdanegui v R

Court of Criminal Appeal (NSW)|2021-07-14|Before: Meagher JA, Walton J, Harrison J

Judgment

MEAGHER JA: The applicant, Mr Urdanegui, seeks leave to appeal from a sentence imposed for a federal drug importation offence on the ground that the "sentencing judge failed to take into account the utilitarian value" of his early plea of guilty. Leave to appeal is required by Criminal Appeal Act 1912 (NSW), s 5(1)(c).
On 26 July 2019, following the entry of that plea, Lakatos SC DCJ convicted and sentenced the applicant for the offence of importing a marketable quantity of a border controlled drug, namely 375.6 grams of pure cocaine brought into Australia on 10 September 2018, contrary to Criminal Code (Cth), s 307.2(1). The sentence imposed was 7 years imprisonment with a non-parole period of 4 years and 6 months, backdated to commence on 10 September 2018 when the applicant was taken into custody.
In hearing and determining the proceedings, the District Court was exercising criminal jurisdiction conferred by Judiciary Act 1903 (Cth), s 68 with respect to offences against laws of the Commonwealth. Except as otherwise provided by the Constitution or laws of the Commonwealth, the laws of New South Wales and the common law governed the exercise of that jurisdiction (Judiciary Act, ss 79, 80). Those laws included Crimes Act 1914 (Cth), s 16A(2)(g).
Section 16A(2)(g) provides that in determining his sentence "the court must take into account such of the following matters as are relevant and known to the court". At the time the applicant was convicted those matters included: (g) if the person has pleaded guilty to the charge in respect of the offence - that fact;

Findings of the sentencing judge

On 8 September 2018 the applicant left Lima, Peru by a flight bound for Sydney. He was in possession of two travel suitcases (one black) and a backpack, and travelling on an Australian passport. On his arrival in Sydney on 10 September 2018 the applicant produced an incoming passenger card marked in the negative in relation to importing any specified prohibited items or drugs. In the course of a search and examination of his luggage the applicant confirmed that it belonged to him and had been packed by him. X-rays of one of the suitcases identified two large champagne bottles contained in two paper gift bags. The applicant claimed they were presents for his family from his uncle in Peru. The bottles were removed, inspected and tested. Upon analysis the substance in the bottles was confirmed to be cocaine with a total weight of 375.6 grams.
The applicant was arrested and interviewed by Australian Federal Police. He stated that his four-week trip had been extended to six weeks and that during that period he had met a male person named Jose at a party. Jose had asked him to take some items back to Sydney for his family. The applicant agreed to do so and Jose visited his accommodation some days later and dropped off the items which were delivered in a plastic bag. The applicant denied noticing that there were bottles in the plastic bag but recognised that the bag was heavy. He claimed that he did not check the items given to him and was not provided with any contact details for Jose. According to the applicant he understood that Jose would organise for someone to contact him upon his arrival in Sydney for the purpose of collecting the items. The applicant said that his uncle had purchased the black suitcase for him and filled it with gifts from his wife for the applicant to bring back to Australia. The items given to him by Jose were packed in that bag. As to his financial position, the applicant said that he had gambling debts of $15,000.

Whether there was a failure to take into account the utilitarian value of the applicant's plea of guilty

The "utilitarian value" of an early plea

The applicant was sentenced well after the decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, which held that in taking into account a plea of guilty the sentencing judge was entitled to have regard to its "utilitarian value" as well as to what it revealed relevant to the assessment of subjective mitigating factors such as contrition and remorse. The "utilitarian value" of a plea is in the avoided time and expense otherwise involved in the prosecution of the relevant offence or offences. Recent decisions of this Court which similarly explain the nature of that benefit include Bae v R [2020] NSWCCA 35 at [57] (Johnson J); Chuang v R; Chen v R [2020] NSWCCA 60 at [4] (Basten JA); and Weber v R [2020] NSWCCA 103 at [9]-[14] (Simpson AJA).
In so concluding the Court in Xiao expressly acknowledged the difference between the subjective state of mind of the offender, which will likely make known the reasons for the making of the plea, and its objective consequences for the administration of justice: Xiao at [226], [229], [277]. The former may reveal a subjective "willingness to facilitate the administration of justice" which in turn may support a finding of contrition and remorse, and also result in a favourable finding as to the offender's prospects of rehabilitation. As Basten JA observed in Chuang at [15]-[19], the differences between these objective and subjective consequences or considerations arising from the early guilty plea must be kept clearly in mind in the undertaking of the sentencing process, for reasons which include the need to avoid double counting any relevant mitigating factor. In this respect see also Bae at [55]; and Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191 at [60]-[62] (Fullerton J).
Having concluded that s 16A(2)(g) entitled the court to take the utilitarian value of the plea into account, the Court in Xiao continued at [280]: Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error. (emphasis added)

The submissions on sentence

The written submissions of the parties on the sentencing hearing acknowledged the fact of an early guilty plea, and that the Court should take the utilitarian value of that plea into account in accordance with s 16A(2)(g). The Crown's submission referred to Xiao in support of that proposition and acknowledged that it was desirable "although not compulsory" that the Court quantify "the discount afforded to an offender for his or her guilty plea". The offender's written submissions also referred to the early plea and continued (but without regard to the different ways in which the objective and subjective considerations arising from the early plea are to be taken into account) "that a discount for a plea of guilty should take into account purely utilitarian considerations along with other matters such as contrition or acceptance of responsibility". In Chuang at [16]-[19] Basten JA noted that the use of discounting other than with respect to the utilitarian value of a plea was "not appropriate" and in Bae at [57] Johnson J described the demonstration of contrition following a plea of guilty as an "unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis".

Remarks on sentence

At the outset of his remarks on sentencing the judge recorded: The offender was committed for sentence on 13 March 2019 and there will be a discount in due course for his facilitating the course of justice by entering that early plea of guilty. He was arrested on 10 September 2018 and has been in custody since that time. (emphasis added)
His Honour then summarised the agreed facts, the offender's "negligible" criminal history and the evidence as to the offender's subjective circumstances. The matters in s 16A relevant to the sentencing of the offender were then addressed. They included the degree to which he had shown contrition (s 16A(2)(f)), as to which the sentencing judge's remarks included: The next heading is the degree of contrition shown by the offender. Other than the plea of guilty, I do not consider that the offender has been frank in disclosing the circumstances of his offence … It is difficult to accept in those circumstances that he has shown contrition. In addition, he has made false denials to the authorities in his interview. (emphasis added)
His Honour then addressed the early plea: I have noted the offender has pleaded guilty at the earliest opportunity and I have indicated and do again that I take that fact into account. (emphasis added)
In his remaining remarks, the sentencing judge did not specify the discount he proposed to take into account.

The merits or otherwise of the ground of appeal

The applicant's argument may be stated shortly. First, it is said that his Honour's reference to the offender's "facilitating the course of justice" should be understood as being to the offender's subjective willingness to do so, rather than to the objective consequence of his having done so, and accordingly as not addressing the utilitarian value of his plea. Secondly, it is submitted that the judge's "failure to refer to a numerical discount for the utilitarian value" of the plea elsewhere in the remarks on sentence confirms that none was made.
These submissions do not accurately or fairly describe the effect of the sentencing judge's relevant remarks.
His Honour's first remark (see [11] above) is plainly addressing the outcome for the administration of justice of the fact of the early plea. The reference is to the offender's "facilitating" or bringing about that result, and not to his subjective "willingness" to do so. The former is a matter which is ordinarily quantified and taken into account by the application of a discount whereas the latter, as a subjective mitigating factor, is ordinarily weighed as part of the overall sentencing exercise.
That his Honour was conscious of this distinction and, in the first and third of the extracted remarks, addressing the benefit of the plea as an objective factor is confirmed by his consideration of the offender's contrition in the second. In doing so the fact of the plea as evidence of a consciousness of wrongdoing was taken into account in circumstances where the offender was otherwise found not to have been "frank in disclosing the circumstances of his offence".
In the third passage (at [13] above), the sentencing judge confirmed that he was taking the benefit of the plea into account by way of a discount.
In summary, in his remarks on sentence the sentencing judge said that there would be a discount for the facilitation of the course of justice resulting from the early plea and later confirmed that he was taking the fact of the plea into account in that way. At the same time those remarks acknowledged that the early plea was also relevant to contrition, a subjective mitigating factor. The fact that the discount applied was not specified did not of itself constitute an error. Nor did it provide a basis for inferring that the sentencing judge had not applied a discount where he had expressly stated that he was doing so.
It follows that the proposed ground of appeal has no merit. Leave to appeal should be refused.
WALTON J: I agree with Meagher JA.
HARRISON J: I agree for the reasons given by Meagher JA that leave to appeal should be refused.

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