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Court of Criminal Appeal 13 February 2019

Duflaut v R

[2019] NSWCCA 21

Drugs
CRIMINAL LAW SENTENCE JOINT COMMISSION OFFENDER

Citation: Duflaut v R [2019] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 13 February 2019
Judge(s): Hoeben CJ at CL, Wright J, Fagan J

Background

The appellant, a French national, pleaded guilty in the District Court to importing a marketable quantity of cocaine (63.5 g pure) into Australia on 7 August 2016, contrary to s 307.2(1) of the Criminal Code (Cth). His role was that of organiser and "minder": he recruited a courier, assisted her in obtaining travel documents, arranged for the drug to be packaged to her specifications, and accompanied her on the flight from Paris to Sydney. Both he and the courier were arrested at Sydney International Airport and had been in custody since.

At first instance, Judge Buscombe sentenced the appellant to 5 years and 6 months imprisonment with a non-parole period of 3 years and 8 months. His co-offender, who acted solely as the courier with no organising role and no financial benefit, received 3 years imprisonment with release on recognizance after 2 years. Her appeal against that sentence had been dismissed by the Court of Criminal Appeal in July 2018.

The appellant sought leave to appeal his sentence on three grounds, two of which the Crown ultimately conceded.

  • Whether the sentencing judge erred by failing to allow a separate, identifiable discount for the purely utilitarian value of the guilty plea
  • Whether the sentencing judge erred in describing the quantity of cocaine as "a little less than one third of the upper limit" of a marketable quantity, when the correct figure was approximately one-thirtieth
  • Whether the disparity between the appellant's sentence and that of his co-offender gave rise to a justifiable sense of grievance

Decision

The Crown conceded both ground 1 and ground 2. On the plea discount, the sentencing judge had applied the principles then understood to govern Commonwealth sentencing, but subsequent decisions of this Court in Xiao v R and Jinde Huang aka Wei Liu v R established that a specific, identifiable allowance must be made for the purely utilitarian value of a guilty plea. The sentencing judge, through no fault of his own, had not applied that approach.

On ground 2, the sentencing judge's reference to the quantity being approximately one-third of the upper limit of a marketable quantity was plainly incorrect. The correct proportion was approximately one-thirtieth. This error was also conceded by the Crown. Together, the two conceded errors required the Court to resentence the appellant.

Given the need to resentence, the Court did not separately resolve ground 3 (parity). However, it took the co-offender's sentence into account when determining the appropriate sentence, noting that any difference in punishment must fairly reflect the genuine differences in the respective roles. The Court described that judgment as a matter of broad discretion, not precise mathematical calculation.

On resentencing, the Court set a starting point of 7 years imprisonment, applied a 25% guilty plea discount (consistent with the discount allowed to the co-offender on her appeal), and arrived at a head sentence of 5 years and 3 months with a non-parole period of 3 years and 6 months, being two-thirds of the head sentence. The Court noted that the co-offender's sentence had not been further reduced on her appeal because, even allowing for the same errors, the sentence originally imposed on her was already at the minimum appropriate level.

Orders Made

  • Time extended to permit the application for leave to appeal to be heard on its merits
  • Leave to appeal granted
  • Sentence imposed in the District Court on 6 October 2017 set aside
  • Appellant resentenced to imprisonment for 5 years and 3 months, commencing 7 August 2016 and expiring 6 November 2021, with a non-parole period of 3 years and 6 months commencing 7 August 2016 and expiring 6 February 2020
  • Earliest date for release to parole: 6 February 2020

Key Takeaways

  • Following Xiao v R and Jinde Huang aka Wei Liu v R, a sentencing judge dealing with a Commonwealth offence must allow an identifiable discount specifically for the utilitarian value of a guilty plea, separate from any other subjective considerations.
  • A factual error about the quantity of a controlled drug relative to the statutory range can constitute a material sentencing error warranting resentence, even where the error appeared in the sentencing judge's own characterisation rather than in the agreed facts.
  • Where two co-offenders are sentenced simultaneously and both sentences are infected by the same errors, it does not follow that both sentences will be reduced on appeal; if one sentence was already at the minimum appropriate level despite the errors, that sentence will not be further reduced.
  • The Court of Criminal Appeal confirmed that parity between co-offenders is assessed by reference to genuine differences in culpability and role, and the appropriate degree of difference is a matter of broad discretionary judgment rather than arithmetic.
  • An organising and supervisory role in a drug importation, involving recruitment of a courier and logistical coordination, carries materially greater culpability than the role of a courier who was recruited and directed by another.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 307.2(1) (importing a marketable quantity of a border controlled drug)

Cases:
- Xiao v R [2018] NSWCCA 4
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- Sintat v R [2018] NSWCCA 165