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Court of Criminal Appeal 25 July 2018

Sintat v R

[2018] NSWCCA 165

Drugs
CRIME SENTENCE APPEAL WHETHER APPLICANT SHOULD BE RE SENTENCED APPEAL DISMISSED

Citation: Sintat v R [2018] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 25 July 2018
Judges: Hoeben CJ at CL, Price J, Davies J

Background

The applicant pleaded guilty in the Local Court to importing a marketable quantity of cocaine into Australia, contrary to ss 307.2(1) and 11.2A of the Criminal Code Act 1995 (Cth). She had concealed approximately 95.5 grams of cocaine (63.5 grams pure) in her vagina during a flight from Paris to Sydney in August 2016, having been recruited by a co-offender who told her the substance was gold. The sentencing judge rejected her evidence that she believed this and found she knew she was importing a drug.

The applicant was sentenced in the District Court on 6 October 2017 to 3 years imprisonment, commencing 7 August 2016, with release ordered after 2 years on a recognizance under s 20(1)(b) of the Crimes Act 1914 (Cth). Her co-offender, who was characterised as a low-level organiser, received a longer sentence of 5 years 6 months with a non-parole period of 3 years 8 months.

The applicant appealed to the Court of Criminal Appeal on two grounds, contending that the sentencing judge had failed to apply a discount for the utilitarian value of her guilty plea and had erred in his treatment of the drug weight.

  • Whether the sentencing judge erred by failing to allow a discount for the utilitarian value of the guilty plea entered in the Local Court
  • Whether the sentencing judge erred in the manner in which he dealt with the weight of the border controlled drug
  • Whether, if error was established, the applicant should be re-sentenced and, if so, what sentence was appropriate

Decision

The Court of Criminal Appeal accepted that ground 1 was established. The sentencing judge had not referred to the utilitarian value of the guilty plea and had not specified any discount for it, confining his treatment of the plea to facilitating the course of justice and remorse. Following the Court's earlier decisions in Xiao v R [2018] NSWCCA 4 and Jinde Huang aka Wei Liu v R [2018] NSWCCA 70, the Court confirmed that a sentencing judge is entitled to take the utilitarian value of a guilty plea into account when sentencing federal offenders under s 16A of the Crimes Act 1914 (Cth). Because the sentencing proceedings had occurred before those decisions were handed down, the judge attracted no criticism for the approach he took, but error was nonetheless demonstrated.

The Court then proceeded to re-sentence the applicant. Price J applied a 25% discount for the utilitarian benefit of the early guilty plea. His Honour also gave modest weight to the applicant's good character and absence of prior criminal history, noting the established principle that persons with clear records are commonly selected as couriers to avoid suspicion. The applicant's offending was assessed as well below the mid-range of objective seriousness, her role being that of a courier without an organising function, and her prospects of rehabilitation were found to be good.

On re-sentencing, the Court was satisfied that no different sentence than the one originally imposed should have been passed. Despite the error in failing to apply the utilitarian discount, all relevant factors considered together supported the same outcome: 3 years imprisonment with release after 2 years on a recognizance. The Court also confirmed that the disparity between the applicant's sentence and her co-offender's longer sentence was justified by the material differences in their respective roles and circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 16A of the Crimes Act 1914 (Cth), the utilitarian value of a guilty plea is a factor available to sentencing judges when sentencing federal offenders, following Xiao v R [2018] NSWCCA 4 and Jinde Huang aka Wei Liu v R [2018] NSWCCA 70.
  • A failure to apply that discount constitutes a sentencing error, even where the judge was following the practice commonly understood to apply to federal offenders at the time of sentencing.
  • Establishing a sentencing error does not automatically produce a different sentence on re-sentencing. Here, the Court of Criminal Appeal applied a 25% utilitarian discount but arrived at the same sentence as the original, finding it was the minimum period appropriate to reflect the criminality involved.
  • In dismissing the appeal, the Court confirmed the established principle, citing R v Lopez-Alonso (1996), that good character and a lack of prior criminal history attract only modest weight in drug courier cases because offenders with clean records are often deliberately selected for that reason.
  • Disparity between co-offender sentences does not itself constitute error where material differences in role and circumstances exist to justify it.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.2A, 307.2
- Crimes Act 1914 (Cth), ss 16A, 20

Cases
- Xiao v R [2018] NSWCCA 4
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- R v Lopez-Alonso (1996) 86 A Crim R 270
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64