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Court of Criminal Appeal 23 July 2021

Urdanegui v R

[2021] NSWCCA 170

Drugs

Citation: Urdanegui v R [2021] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 23 July 2021
Judges: Meagher JA (leading judgment); Walton J; Harrison J (both agreeing)

Background

The applicant was convicted in the District Court of importing a marketable quantity of cocaine (375.6 grams of pure cocaine) into Australia, contrary to s 307.2(1) of the Criminal Code (Cth). He had carried the cocaine concealed in champagne bottles in his luggage on a flight from Lima, Peru to Sydney in September 2018. The sentencing judge imposed 7 years imprisonment with a non-parole period of 4 years and 6 months, backdated to the date of arrest.

The applicant pleaded guilty at the earliest opportunity. He sought leave to appeal against the sentence on the ground that the sentencing judge had failed to take into account the "utilitarian value" of that early plea, as required by s 16A(2)(g) of the Crimes Act 1914 (Cth).

The central question was whether the sentencing judge's remarks, which acknowledged the early plea and referenced a discount but did not specify a numerical figure, disclosed a failure to apply any discount at all.

  • Whether the sentencing judge failed to take into account the utilitarian value of the applicant's early guilty plea under s 16A(2)(g) of the Crimes Act 1914 (Cth).
  • Whether the absence of a specified numerical discount in the sentencing remarks was sufficient to establish error.
  • How the objective "utilitarian value" of a guilty plea is to be distinguished from its subjective significance as evidence of contrition or remorse.

Decision

Meagher JA (with Walton J and Harrison J agreeing) rejected the proposed ground of appeal and refused leave.

The Court found that the sentencing judge's remarks, read as a whole, plainly addressed the utilitarian value of the early plea as an objective benefit to the administration of justice. At the outset of sentencing, the judge stated there would be "a discount in due course for facilitating the course of justice by entering that early plea." Later in the remarks, the judge confirmed he was taking the plea into account in that way. This was a reference to the objective outcome for the administration of justice, not merely the applicant's subjective willingness to cooperate.

The Court also confirmed that the sentencing judge properly treated contrition separately from utilitarian value. The judge found contrition was not established, because the applicant had been less than frank and had made false denials during his police interview. The fact that the plea was considered separately from contrition demonstrated the judge was conscious of the distinction between objective and subjective consequences of an early plea, consistent with the guidance in Xiao v R and Chuang v R.

On the question of whether omitting a numerical figure constituted error, the Court applied the principle from Xiao v R that specifying a discount is desirable but not mandatory. Where a sentencing judge expressly states that a discount is being applied, the failure to quantify that discount does not of itself constitute error, nor does it support an inference that no discount was applied.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Under s 16A(2)(g) of the Crimes Act 1914 (Cth), a sentencing court must take into account a guilty plea, and this includes its "utilitarian value": the objective benefit to the administration of justice from the time and expense avoided by the plea.
  • The utilitarian value of a guilty plea is conceptually distinct from its subjective significance as evidence of contrition or remorse. These two considerations must be kept clearly separate in the sentencing process to avoid double-counting.
  • No error arises from a failure to state a numerical discount, provided the sentencing judge expressly acknowledges that a discount for the plea's utilitarian value is being applied. This principle, established in Xiao v R, was confirmed and applied here.
  • Sentencing remarks are read as a whole. Where a judge's remarks at the outset and later in the sentence refer to a discount for facilitating the course of justice, those remarks together satisfy the requirement under s 16A(2)(g) even without a precise percentage or figure.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that an inference of non-compliance cannot be drawn from the mere absence of a numerical discount where the judge has expressly stated the intent to discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), s 307.2(1)
- Judiciary Act 1903 (Cth), ss 68, 79, 80

Cases:
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Bae v R [2020] NSWCCA 35
- Chuang v R; Chen v R [2020] NSWCCA 60
- Weber v R [2020] NSWCCA 103
- Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191