Zaugg v R

Approach to the Applicant's Plea of Guilty on Sentence at the Original Sentencing Hearing

1. As mentioned earlier, the Applicant was arrested on 11 December 2013.
2. On 4 June 2014, the Applicant entered a plea of not guilty at the Central Local Court and was committed for trial with the trial being listed to commence at the Sydney District Court on 27 October 2014. Five days before the trial was due to start, the Applicant was arraigned at the Sydney District Court and entered a plea of guilty on 22 October 2014. The matter was listed for a sentencing hearing on 13 February 2015.
3. On 13 February 2015, the Applicant informed the Court that she wished to traverse her guilty plea. The matter was listed for hearing of an application for leave to withdraw her guilty plea on 7 May 2015.
4. On 26 March 2015, the Applicant indicated that she no longer wished to traverse her plea of guilty and a sentencing hearing proceeded on 7 May 2015.
5. Counsel for the Applicant at the sentencing hearing submitted that the Court should take into account her plea of guilty. It was accepted that the Applicant had been committed for trial and the plea of guilty was entered not long before the trial date, but the submission was made that "there is some utilitarian value that attaches to that" (T4, 7 May 2015).
6. The Crown written submissions at the District Court sentencing hearing recounted the procedural history of the Applicant's matter from 11 December 2013 to May 2015, and drew attention to then applicable principles concerning the approach on sentence in Commonwealth matters to an offender's guilty plea and the person's willingness to facilitate the course of justice. In accordance with the law as it stood in May 2015, the Crown submitted that an offender's guilty plea "must not be taken into account as a mitigating factor for its objective 'utilitarian value' or on the basis that it saves the community the expense of a contested trial", citing Tyler v R; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [110]-[114]. It was noted that a sentencing court "may specifically quantify the sentence discount for the guilty plea", but that "provided the guilty plea is taken into account, there is no requirement to quantify the discount".
7. The sentencing Judge approached the Applicant's plea of guilty in the following way when passing sentence (ROS11): "A plea of guilty in itself does not indicate remorse or contrition of necessity. In this matter the offender did not enter a plea of guilty until shortly before the trial date, and having done so, then indicated that she wished to traverse the plea, although later withdrawing from the traversal and continuing the plea. In those circumstances, the plea of guilty cannot be seen as evidence of remorse or contrition. The offender is, however, entitled to have taken into account, despite the belated nature of the plea and the indicated traversal, that by pleading guilty she facilitated the course of justice. However, the benefit to be provided in those circumstances is limited by the lateness of the plea and the indication of a desire to traverse it, and also where the plea was in the face of a substantial Crown case, as a result of her explanations given when detected as to how she came to be in possession of the clutch bags, and being aware of all of the contents of her bag which she had packed herself. In addition, in respect of remorse and contrition, there is absolutely no evidence before the Court that the offender is remorseful or contrite."
8. Later in the sentencing remarks, his Honour said (by reference to the passage in the preceding paragraph) (ROS12): "I have already referred to the relevant matters, including that I will make some allowance for facilitating the course of justice."
9. The sentencing Judge did not quantify the allowance or discount which arose from the Applicant's facilitation of the course of justice.

The Sole Ground of Appeal Asserting Error in the Approach to the Applicant's Plea of Guilty

1. Ms Avenell, counsel for the Applicant, submitted that error was demonstrated in the sentencing Judge's approach to the Applicant's plea of guilty in light of the decision of this Court in Xiao v R. It was submitted that his Honour had, for understandable reasons, failed to take into account the utilitarian value of the Applicant's plea of guilty in determining sentence. Although his Honour had regard to related issues concerning the willingness of the Applicant to facilitate the course of justice, it was submitted that a relevant factor had not been taken into account so that error had been demonstrated and the Court should move to exercise its independent sentencing discretion in accordance with Kentwell v The Queen at [43].
2. The Crown accepted that the sentencing Judge was in error in the way in which the plea of guilty was taken into account in this case. In light of the decision in Xiao v R, the Crown accepted that the sentencing Judge erred by not having regard to the utilitarian value of the Applicant's plea of guilty.
3. Whilst acknowledging the Crown concession, it remains a matter for the Court to determine whether error is demonstrated in accordance with the ground of appeal. It is the case that the sentencing Judge had regard to features related to the Applicant's plea of guilty which were taken into account in her favour in an unquantified way on sentence. However, it is clear that the sentencing Judge did not take into account the utilitarian value of the Applicant's plea of guilty. The state of the law at the time when sentence was passed in May 2015 was such that this aspect was to be excluded from consideration.
4. I am satisfied that error has been demonstrated in accordance with the ground of appeal and that this Court should proceed to exercise its independent sentencing discretion for the purpose of determining whether a lesser sentence is warranted in accordance with s.6(3) Criminal Appeal Act 1912: Kentwell v The Queen at [42]-[43].

Other Findings of the Sentencing Judge

1. For the purpose of undertaking the Court's function under s.6(3) Criminal Appeal Act 1912, regard should be had to the objective seriousness of the offence and issues of specific and general deterrence. In this respect, the findings of the sentencing Judge should be accepted by this Court.
2. The sentencing Judge found (ROS9-10): "I have no doubt that the offender was aware that she was carrying a substantial quantity of a prohibited drug into Australia, and doing so for a substantial reward. There is, of course, no evidence of what that reward may have been. She must have had some appreciation from her examination of the clutch bags that each contained in terms of the size of the clutch bag a substantial quantity of a prohibited drug, even if she was not aware precisely of the nature of it. The common sense inference from the circumstances is that the offender was involved for profit. Her own statement, while stating that she did not speak about any price or payment, does indicate that after attending her accommodation in Australia she was to obtain further instructions. In R v Kaldor (2004) 150 A Crim R 271 at [104] it was stated in effect that the common sense inference to be drawn, even where there is no specific evidence to suggest that an offender was to receive a financial reward, was that the offender was involved for profit unless there was specific evidence to the contrary. There is indeed no specific evidence to the contrary; there is simply an absence of information."
3. His Honour said concerning the Applicant's role in the offence (ROS10): "In relation to offences of this nature it is frequently possible to make a determination as to what role the offender played in respect of the offence. Sometimes it is possible to discern that a particular offender is a principal or a courier or perhaps in some lesser role; however, the offence is one of importation. The offender was the person who carried out the essential role of importing the methamphetamine into Australia. I am unable to particularly determine any specific role, and in those circumstances, I will sentence her on the basis of what she did rather than any specific categorisation of her offending, …"
4. The sentencing Judge noted that the pure weight of the substance was almost five times the commercial quantity of 750 grams applicable to methamphetamine.
5. His Honour outlined the basis upon which the Applicant was to be sentenced for her offence (ROS11): "It has been frequently stated in the courts that illicit drug organisations are only able to prosper because people are ready, willing and able to undertake a role such as courier. However, even in respect of couriers it is a well-established principle that persons who participate in the illicit drug trade at any level should expect and receive a heavy penalty, R v Budiman (1998) 102 A Crim R 411. As already indicated, I will sentence the offender on the basis of what she actually did which was the essential role of importing the prohibited drug."
6. The sentencing Judge had regard to the need for specific deterrence and general deterrence on sentence (ROS12): "In respect of matters such as this, it is clear that the passengers carrying prohibited drugs into Australia are difficult to detect, and from those that are detected, it appears to be a common occurrence. In those circumstances, both specific deterrence and general deterrence are important matters for the Court to take into account in determining an appropriate sentence. That is, the sentence imposed on an offender in these circumstances must be of such a severity that it will act to deter others from engaging in activities to smuggle prohibited drugs into Australia. The sentence must signal to would be smugglers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment - …"
7. The findings made by the sentencing Judge accord with the principles to be applied on sentence for this class of offence as outlined in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72].
8. Before moving to pass sentence, his Honour noted other factors bearing on sentence (ROS12-13): "I have taken into account the matters disclosed by the offender as to her personal history and circumstances, and I also take into account to a limited degree the fact that imprisonment in Australia would clearly be a greater hardship for her in the circumstances where her friends, family and her past life are all associated with Switzerland. However, I note that that is the ordinary circumstance that occurs where foreign nationals deliberately take the risk of being arrested in a foreign country for committing an offence in that country."
9. These findings will be taken into account by this Court for the purpose of the exercise of its s.6(3) function.

Further Evidence Concerning the Applicant's Prospects of Rehabilitation and Risk of Reoffending

1. In exercising its function under s.6(3) Criminal Appeal Act 1912, the Court should take into account all relevant matters, including evidence of the Applicant's progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].
2. For the purpose of resentencing, the Applicant relies upon her own affidavit affirmed 20 February 2020 and the affidavit of Suzanne Tezjan Knowles affirmed 24 February 2020.
3. The Applicant's affidavit recounts her experience in custody since 2013. Amongst other things, the Applicant states that she sees many persons in custody who have experienced drug addiction and that she regrets her part in the introduction of drugs into Australia. The Applicant has been housed in various correctional centres, spending her time between Silverwater Women's Correctional Centre and Berrima Correctional Centre where she is presently housed.
4. The Applicant has completed English classes and other vocational courses whilst in custody, with her completion of those courses being verified by documents annexed to the affidavit of Ms Knowles.
5. It is the case that the Applicant has a number of disciplinary offences arising from incidents in custody including fighting and assault. It is necessary to consider these disciplinary offences in their correctional context where an element of tension and conflict between inmates is likely to occur, in particular with an older inmate such as the Applicant who has little in common with other persons in the prison population. That said, these disciplinary offences mean that the Applicant does not have an unblemished custodial history.
6. The Applicant states that she has had very few visits since she has been in custody as her family live overseas. She has expressed a strong desire to return to Switzerland when she is released from custody.
7. Counsel for the Crown at the hearing before this Court confirmed that it was expected that the Applicant would be deported from Australia when released on parole, with her being held in immigration detention pending removal from Australia.
8. The sentencing Judge made a guardedly optimistic finding with respect to the Applicant's prospects of rehabilitation (see [35] above). The additional evidence concerning the Applicant's conduct and progress in custody between 2015 and 2020 calls for a stronger finding to be made in her favour, particularly having regard to her age and the fact that she will return to Switzerland, a country where she lived without offending until her journey to Australia in 2013.

Assessing the Utilitarian Value of the Applicant's Plea of Guilty

1. A number of decisions of this Court have considered and applied the principles in Xiao v R in contexts similar to the present case.
2. In Bae v R [2020] NSWCCA 35, reference was made (at [49]-[52]) to a number of decisions including the decision of this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102, a case considering discounts for utilitarian value for pleas of guilty for State offences.
3. In Bae v R, with the concurrence of Bell P and Walton J, I said at [53]-[57]: "53 The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). 54 Counsel for the Appellant and the Crown both accepted at the hearing in this Court that the principles in R v Borkowski provided assistance in assessing the utilitarian value of a guilty plea for a Commonwealth offence (T2-3, 5, 11, 6 February 2020). 55 It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender's favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations. 56 As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]: 'Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.' 57 The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender."
4. The discount for the utilitarian value of the Applicant's plea of guilty should have regard principally to the timing of the plea of guilty, which occurred five days before the scheduled trial date, and with a further delay occurring because of the Applicant's then desire to seek leave to withdraw her plea of guilty. Although the Applicant did not persist with this application, more time passed before the Applicant confirmed her plea of guilty.
5. In assessing the utilitarian value of the Applicant's plea of guilty, regard should be had to the likely duration of a trial. This Court was informed that any trial would not likely have been lengthy having regard to the limited factual circumstances of the case. The experience of the courts would suggest that a period of about two weeks would constitute a reasonable trial estimate in assessing the utilitarian value of the Applicant's plea. It may be taken that the Crown was preparing for trial up to the period when the Applicant entered her plea of guilty in the days prior to the scheduled trial commencement.
6. As noted in Bae v R at [57] (see [69] above), the utilitarian value of the Applicant's plea of guilty is an objective factor to be considered and preferably quantified. Factors on the subjective side of the equation remain unquantified, but are to be taken into account in the process of instinctive synthesis, with the Court guarding against double counting of these aspects in a manner favourable to the Applicant.
7. In this case, the Applicant did not demonstrate contrition or remorse at the time of sentence being passed in May 2015. Counsel for the Applicant submitted that this Court should adopt the same approach on these issues when resentencing.
8. There is, of course, no bright line test for distinguishing between objective and subjective considerations, with these factors having a capacity to overlap in considering an offender's plea of guilty: Bae v R at [56] (see [69] above). Having considered factors which bear upon the utilitarian value of the Applicant's plea of guilty, I would assess the discount in this case at 10%. In factoring in this discount for the purpose of sentencing, care will be taken not to double count related subjective factors which may operate in the Applicant's favour on sentence.

Resentencing the Applicant

1. I approach the sentencing of the Applicant upon the basis that the discount for the utilitarian value of her plea of guilty, in accordance with Xiao v R, will be 10%.
2. The findings of the sentencing Judge with respect to the objective seriousness of the offence and issues of specific and general deterrence remain appropriate and I adopt those findings for the purpose of resentencing. The Applicant's subjective case is a stronger one at this point than it was in 2015. She has made constructive use of her time in custody to undertake vocational courses as well as developing a level of insight with respect to her offending. These factors are to be taken into account in her favour on resentence. I am satisfied that the Applicant has good prospects of rehabilitation and there is a low risk of reoffending.
3. Having undertaken the process required by Kentwell v The Queen, I am satisfied for the purpose of s.6(3) Criminal Appeal Act 1912, that a lesser sentence should be passed. Before application of the 10% discount for the Applicant's plea of guilty, a sentence of imprisonment for 12 years is appropriate. After application of the 10% discount (and with some rounding), the sentence of imprisonment will comprise a period of 10 years and nine months commencing on 11 December 2013. A non-parole period of six years and four months is appropriate in the circumstances of the case.
4. As the Applicant is expected to be deported from Australia upon release on parole, no purpose will be served by explaining the effect of release on parole for the purpose of s.16F Crimes Act 1914 (Cth).

Conclusion and Orders

1. It is appropriate to return to the question of extension of time. I am satisfied that there is merit in the Applicant's ground of appeal and that it is appropriate, if an extension is granted, to resentence the Applicant to a lesser term of imprisonment. In these circumstances, I am satisfied that the interests of justice warrant the grant of an extension of time in this case.
2. I propose the following orders: 1. time for the Applicant to apply for leave to appeal against sentence extended to 23 January 2020; 2. grant the Applicant leave to appeal against sentence; 3. appeal against sentence imposed on 15 May 2015 is allowed and the sentence quashed; 4. for the offence of importation of a commercial quantity of a border controlled drug, methamphetamine, the Applicant is sentenced to imprisonment for 10 years and nine months comprising a non-parole period of six years and four months commencing on 11 December 2013 and expiring on 10 April 2020 with a balance of four years and five months commencing on 11 April 2020 and expiring on 10 September 2024; 5. the earliest date upon which the Applicant will be eligible for release on parole is 11 April 2020.
3. IERACE J: I agree with Johnson J.

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