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Court of Criminal Appeal 8 March 2021

Cressel v R

[2021] NSWCCA 26

Drugs
CRIMINAL LAW SENTENCE ERROR ESTABLISHED APPLICANT RESENTENCED

Citation: Cressel v R [2021] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 8 March 2021
Judges: Gleeson JA, Harrison J, Bellew J (judgment delivered by Bellew J)

Background

The applicant pleaded guilty in the Local Court to two counts of importing a border controlled drug (cocaine) contrary to the Criminal Code 1995 (Cth). The first count related to the importation of approximately 3,326 grams of pure cocaine via an air cargo consignment in April 2016; the second related to a further importation of approximately 1,424 grams of pure cocaine intercepted shortly afterwards. Both importations were arranged through an overseas contact and carried out using the addresses of unwitting acquaintances.

The applicant was sentenced in the District Court in October 2017, receiving nine years for count 1 and six years and six months for count 2, with a single non-parole period of six years and six months. The applicant subsequently sought leave to appeal, also requiring an extension of time, which the Crown did not oppose.

The central issue on appeal was whether the sentencing judge had correctly applied the law regarding discounts for guilty pleas in Commonwealth matters, in light of a significant change in the applicable legal framework brought about by the Court of Criminal Appeal's subsequent decision in Xiao v R [2018] NSWCCA 4.

  • Whether the sentencing judge erred by failing to apply a discount for the utilitarian value of the guilty plea, having instead assessed the plea only through the lens of the applicant's "willingness to facilitate the course of justice" (the approach applicable to Commonwealth matters before Xiao)
  • Whether, on resentencing, additional discount was warranted for assistance provided to authorities
  • Whether the applicant's genuine remorse and prospects of rehabilitation were relevant mitigating factors
  • Whether the conditions of the applicant's custody, rendered more onerous by an incident for which he bore no responsibility, warranted further consideration in resentencing

Decision

The Court found that the sentencing judge's approach to the guilty plea discount, while consistent with the law as it stood in October 2017, had been overtaken by the Court of Criminal Appeal's decision in Xiao, delivered in February 2018. That decision confirmed that, for Commonwealth offences, a sentencing court must now take into account both the utilitarian value of a guilty plea and the offender's willingness to facilitate the course of justice. Because the sentencing judge had addressed only the latter, error was established.

The Court accepted that the plea had been entered at the first available opportunity. Applying the current framework, the Court determined that a discount was warranted not only for the utilitarian value of the plea but also for the applicant's assistance to authorities, including providing PIN codes for electronic devices and information that led police to a second consignment.

On resentencing, the Court also accepted the applicant's genuine remorse and good prospects of rehabilitation as mitigating factors. The Court further acknowledged that an incident in custody, entirely beyond the applicant's control, had rendered his conditions of imprisonment more onerous than they would otherwise have been, and treated this as a factor warranting some amelioration in the sentence.

Having regard to the principle of totality (which requires a court to ensure that the combined effect of multiple sentences is not disproportionate to the overall criminality), the Court imposed a total effective sentence of 10 years imprisonment with a non-parole period of 6 years.

Orders Made

  • Extension of time to file the application for leave to appeal granted to 28 September 2020
  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed
  • In lieu thereof, the applicant resentenced as follows:
  • Count 2: 6 years and 6 months imprisonment commencing 29 April 2016 and expiring 28 October 2022
  • Count 1: 9 years imprisonment commencing 29 April 2017 and expiring 28 April 2026
  • Total effective sentence: 10 years imprisonment
  • Single non-parole period of 6 years imprisonment commencing 29 April 2016 and expiring 28 April 2022

Key Takeaways

  • Following Xiao v R [2018] NSWCCA 4, sentencing courts dealing with Commonwealth offences must account for both the utilitarian value of a guilty plea and the offender's willingness to facilitate the course of justice. Addressing only one limb constitutes an error of law.
  • A sentencing decision that was correct under the law as it stood at the time of sentencing may nonetheless be set aside on appeal where a subsequent appellate decision has authoritatively altered the applicable legal framework.
  • Conditions of custody made more onerous through circumstances entirely beyond an offender's control can constitute a relevant mitigating factor on resentencing.
  • Assistance to authorities, including disclosure of device access codes and information leading to the discovery of further contraband, is a distinct consideration capable of attracting additional discount beyond that applied for the plea itself.
  • The principle of totality operates to ensure that a combination of sentences for multiple offences does not produce a cumulative result that is disproportionate to the offender's overall criminality.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 307.1(1), 307.2
- Crimes Act 1914 (Cth)
- Crimes Legislation Amendment (Sexual Crimes against Children and Community Protection Measures) Act 2020 (Cth)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
- Diaz v R [2019] NSWCCA 216
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- R v Amati [2019] NSWCCA 193
- R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524
- Gwardys v R [2019] NSWCCA 62
- Cotter v R [2020] NSWCCA 299
- Weber v R [2020] NSWCCA 103
- Okafor v R [2007] NSWCCA 147
- Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238
- R v Bimendali [1999] NSWCCA 409; (1999) 109 A Crim R 355
- R v Barrientos [1999] NSWCCA 1
- R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451
- R v Elfar [2003] NSWCCA 358
- R v Si Thanh To [2007] NSWCCA 200; (2007) 172 A Crim R 121