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Court of Criminal Appeal 12 October 2022

Garcia v R

[2022] NSWCCA 172

DrugsFraud & dishonesty
CRIMINAL LAW CRIMINAL CODE ACT 1995 (CTH) S 400.3 DE SIMONI PRINCIPLE WHETHER ERROR IN OVERALL EFFECTIVE NON PAROLE PERIOD PARITY

Citation: Garcia v R [2022] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 12 October 2022
Judges: Macfarlan JA; Walton J (principal judgment); Rothman J

Background

The applicant pleaded guilty in the District Court to three Commonwealth offences and two State offences arising from serious drug trafficking and money laundering activity. The Commonwealth offences included dealing with money recklessly as to the risk it would become an instrument of crime (involving sums of $1 million or more), trafficking a marketable quantity of methamphetamine, and breaching a conditional release order. The State offences involved supplying commercial and large commercial quantities of prohibited drugs.

At first instance, the sentencing judge imposed an overall effective sentence of 15 years and 6 months with a non-parole period of 11 years, commencing 18 May 2015. The applicant sought leave to appeal against sentence on six grounds.

  • Whether the sentencing judge correctly identified the fault element of the money laundering offence under s 400.3(2) of the Criminal Code Act 1995 (Cth)
  • Whether the sentencing judge breached the De Simoni principle by sentencing the applicant for a distinct offence from the one charged (specifically, confusing s 400.3(2)(b)(i) with s 400.3(2)(b)(ii))
  • Whether the sentencing judge erred in calculating the discount for the guilty plea to the money laundering offence by misstating when the charge was laid
  • Whether the sentence for the money laundering offence was manifestly excessive
  • Whether the sentencing judge miscalculated the overall effective non-parole period, producing an inflated ratio against the overall head sentence
  • Whether an unjustifiable sentencing disparity existed between the applicant and a co-offender

Decision

Ground 1 (fault element): The Court found that the sentencing judge erred by substituting the wrong fault element, treating the offence as one where the applicant was reckless that the money "would" become an instrument of crime. The correct fault element under s 400.3(2)(c) is recklessness as to a risk that the money will become an instrument of crime. However, the Court concluded this error did not materially affect the exercise of the sentencing discretion, because the judge in substance sentenced for recklessness as to that circumstance.

Ground 2 (De Simoni principle): This ground succeeded. The applicant was charged under s 400.3(2)(b)(ii) of the Criminal Code, but the sentencing judge made findings consistent with an offence under s 400.3(2)(b)(i). Although both provisions carry the same maximum penalty, they criminalise distinct conduct. Applying the principle from R v De Simoni (1981) 147 CLR 383, an offender cannot be punished for a different offence from the one charged, even where the maximum penalties are equivalent.

Ground 3 (guilty plea discount): The sentencing judge misstated the date on which the money laundering charge was laid. This factual error affected the assessment of the utilitarian value of the guilty plea and therefore infected the sentencing discretion. The ground was upheld.

Grounds 4, 5 and 6: Given the errors already established, the Court found it unnecessary to determine manifest excess separately. On ground 5, the Court found a clear misstatement of the overall additional term, which substantially inflated the ratio of the non-parole period to the total effective sentence. On the parity ground, while the sentencing judge had made an error in calculating the co-offender's methylamphetamine quantity, this did not produce an unjustifiable disparity between the two offenders' sentences when all relevant factors were considered.

The Court resentenced the applicant, reducing the overall sentence to 14 years and 9 months with a non-parole period of 10 years and 3 months, commencing 18 May 2015.

Orders Made

  • Leave to appeal granted
  • Appeal allowed on Grounds 2, 3 and 5
  • Original sentence quashed and the applicant resentenced as follows:
  • Breach offence (s 400.9(1)): 7 months imprisonment commencing 18 May 2015
  • Trafficking offence (s 302.3(1)): 7 years 6 months imprisonment commencing 18 July 2015
  • Money laundering offence (s 400.3(2)): 8 years imprisonment commencing 18 February 2016
  • Single non-parole period for Commonwealth offences: 5 years 10 months commencing 18 May 2015, expiring 17 March 2021
  • Aggregate sentence for State supply offences: 12 years commencing 18 February 2018, expiring 17 February 2030, with an aggregate non-parole period of 7 years 6 months commencing 18 February 2018, expiring 17 August 2025
  • Indicative sentences: First State Supply Offence 5 years (NPP 3 years 3 months); Second State Supply Offence 10 years (NPP 6 years 6 months)
  • Overall effective sentence: 14 years 9 months with a non-parole period of 10 years 3 months commencing 18 May 2015; earliest release date 17 August 2025; sentence expiring 17 February 2030

Key Takeaways

  • Under the De Simoni principle, a sentencing court cannot punish an offender for a variant of an offence that was not charged, even where both variants carry the same statutory maximum penalty. Sections 400.3(2)(b)(i) and (ii) of the Criminal Code criminalise distinct conduct, and conflating them at sentencing constitutes a ground of appeal.
  • A factual error by a sentencing judge in identifying when a charge was laid can constitute a material error affecting the assessment of the utilitarian value of a guilty plea, thereby infecting the exercise of the sentencing discretion.
  • Where multiple sentencing errors are established, a court on appeal will typically proceed to resentence rather than address each remaining ground in isolation.
  • Establishing that a sentencing judge made a factual error in calculating a co-offender's drug quantity does not automatically produce a ground for parity relief; the Court of Criminal Appeal will assess whether any resulting disparity is genuinely unjustifiable in light of all the circumstances of both offenders.
  • Errors in calculating or expressing the overall effective non-parole period, including misstatements of the additional term, can produce an impermissible ratio and will be corrected on appeal.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 400.3(2), 400.9(1), 302.3(1)
- Crimes Act 1914 (Cth), ss 9, 19AB, 19AJ, 20, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes Act 1900 (NSW), s 35
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142

Cases
- R v De Simoni (1981) 147 CLR 383
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Bae v R [2020] NSWCCA 35
- Baden v R [2020] NSWCCA 23
- Burrows v R [2017] NSWCCA 45
- El Masri v R [2022] NSWCCA 27
- Fenech v R [2018] NSWCCA 160
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- *Lowe