Citation: Gershuny v R; Ruiz v R [2020] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 14 February 2020
Judges: McCallum JA, Adamson J, Beech-Jones J (unanimous, reasons delivered by Beech-Jones J)
Background
Two applicants, both foreign nationals from the United States residing in Colombia and New York respectively, were apprehended by Australian Border Force officers aboard the cruise ship MV Costa Luminosa in November 2015, approximately twelve nautical miles from Sydney Harbour. Each was found to be in possession of roughly 3.5kg of pure cocaine, secreted in shoes and clothing in an identical manner. A third individual, Mr Diaz, was apprehended on the same ship under materially identical circumstances.
All three were charged separately (not as co-offenders) and sentenced by the same District Court judge. The two applicants each received a head sentence of 9 years and 6 months with a non-parole period of 4 years and 10 months. Mr Diaz was subsequently sentenced to lesser terms following a successful appeal to the Court of Criminal Appeal in Diaz v R [2019] NSWCCA 216.
The applicants sought leave to appeal their sentences, arguing they were left with a justifiable sense of grievance compared to Mr Diaz's reduced sentence.
Legal Issues
- Whether the original sentences were affected by the error identified in Xiao v R (2018) 96 NSWLR 1, which concerned the proper calculation of the utilitarian discount for a guilty plea to a Commonwealth offence
- Whether, having found error, the court was obliged to resentence the applicants to lesser terms
- Whether the parity principle required the applicants' sentences to be brought into line with the sentence imposed on Mr Diaz by a differently constituted Court of Criminal Appeal
- Whether Mr Diaz's additional five months in protective custody constituted a meaningful differentiating factor justifying a disparity in sentence outcomes
Decision
The Commonwealth Director of Public Prosecutions conceded that the sentences were affected by error arising from the Xiao ground, which enlivened the court's discretion to resentence. However, the CDPP argued that no lesser sentence was warranted in law and the appeals should therefore be dismissed under s 6(3) of the Criminal Appeal Act 1912. The court rejected that argument.
The court found that the parity principle required it to intervene. All three men were foreign nationals who had played equivalent courier roles in what appeared to be a coordinated operation, carrying near-identical quantities of cocaine concealed in the same way. The sentencing judge had himself recognised parity as a relevant consideration when dealing with these offenders.
On the question of Mr Diaz's additional five months in protective custody, the court accepted that this had been noted in Diaz but found no evidence that protective custody was materially more burdensome than the conditions experienced by the applicants. There was also nothing in Diaz to suggest that circumstance had driven any sentencing differential. Given all three were foreign nationals with no local family or community ties, imprisonment was expected to weigh equally on each of them.
The court concluded that if the applicants were left serving longer sentences than Mr Diaz for effectively identical offending, they would be left with a justifiable sense of grievance. Accordingly, it allowed the appeals and resentenced both applicants afresh to bring their sentences into parity with Mr Diaz.
Orders Made
For both Mr Gershuny and Mr Ruiz, the court made identical orders:
- Leave to appeal against sentence granted
- Appeal upheld
- Sentence imposed at first instance set aside
- Each applicant resentenced to a head sentence of 9 years, commencing 6 November 2015 and expiring 5 November 2024, with a non-parole period of 4 years and 6 months, expiring 5 May 2020
Key Takeaways
- The Court of Criminal Appeal confirmed that a Xiao error in calculating the utilitarian value of a guilty plea to a Commonwealth offence is sufficient to enliven the resentencing discretion, even where the prosecution argues no lesser sentence is warranted.
- Parity is not confined to formally charged co-offenders. Where multiple offenders played materially identical roles in a coordinated operation and were sentenced by the same judge, the parity principle applies even if they were charged separately.
- A sentence reduction granted to one offender by the Court of Criminal Appeal on appeal can give rise to a parity argument by other offenders who were not parties to that appeal, provided the disparity is not explained by genuine differentiating factors.
- Bare assertions that one offender experienced harsher custodial conditions (such as protective custody) will not be sufficient to justify a sentencing differential without evidence demonstrating that those conditions were materially more burdensome.
- In dismissing the CDPP's reliance on s 6(3) of the Criminal Appeal Act 1912, the court reaffirmed that where error is established and parity demands intervention, the court is bound to allow the appeal and impose a lesser sentence.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.1(1)
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Xiao v R (2018) 96 NSWLR 1 (the primary error identified)
- Diaz v R [2019] NSWCCA 216 (the comparator sentence)
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- House v The King (1936) 55 CLR 409
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458
- Greentree v R [2018] NSWCCA 227