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11
Court of Criminal Appeal 11 May 2022

Patel v R

[2022] NSWCCA 93

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE COMMONWEALTH OFFENCES SENTENCE APPEAL ALLOWED

Citation: Patel v R [2022] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 11 May 2022
Judges: Brereton JA (principal judgment); N Adams J (agreeing); Lonergan J (agreeing)

Background

The appellant was sentenced in the District Court at Lismore in March 2021 to an aggregate term of four years and six months imprisonment, with a non-parole period of two years and eight months. The sentence related to one count of attempting to possess a marketable quantity of unlawfully imported MDMA (75.45g pure) and one count of trafficking MDMA (9.31g pure), with two further similar matters taken into account under s 16BA of the Crimes Act 1914 (Cth). The offending occurred on 2 September 2019, when police intercepted a series of parcels containing MDMA addressed to the appellant's post office box.

The appellant was 26 years old at the time. Following his arrest, he participated in a full-time residential rehabilitation programme and pleaded guilty in the Local Court. The sentencing judge backdated the sentence by eight months to account for pre-sentence custody and the quasi-custodial period spent in residential rehabilitation.

The appellant sought leave to appeal against the severity of his sentence, arguing primarily that the sentencing judge failed to give proper weight to his contrition.

  • Whether the sentencing judge gave adequate, separate consideration to the appellant's contrition as required by s 16A(2)(f) of the Crimes Act 1914 (Cth)
  • Whether contrition is a distinct sentencing factor from prospects of rehabilitation under Commonwealth sentencing law
  • Whether an offender "downplays" their criminality, so as to undermine a finding of contrition, by pointing to legitimate mitigating factors

Decision

The Court of Criminal Appeal allowed the appeal, finding that the sentencing judge did not duly consider the appellant's contrition as a distinct factor under s 16A(2)(f) of the Crimes Act 1914 (Cth). Brereton JA, with N Adams J and Lonergan J agreeing, held that contrition and prospects of rehabilitation are related but conceptually distinct matters. A sentencing judge is required to address each separately when sentencing for Commonwealth offences.

The Court found that the sentencing judge had effectively conflated the two concepts. His Honour had declined to make a finding of remorse in part because the appellant was perceived as "downplaying" his criminality by pointing to mitigating features of his conduct. The Court rejected that reasoning. An offender does not undermine a claim of genuine contrition merely by identifying legitimate mitigating factors; contrition does not require self-flagellation or the abandonment of available defences and arguments in mitigation.

Brereton JA identified several concrete indicators of the appellant's contrition: his assumption of personal responsibility, his early guilty pleas, his substantial engagement with rehabilitation, and notably his active efforts to encourage peers to make similar lifestyle changes. These matters warranted proper consideration as evidence of contrition independent of rehabilitation prospects.

On resentencing, the Court reduced the aggregate sentence. The Court also addressed, without finally resolving, a separate question raised by N Adams J concerning whether s 19AB of the Crimes Act 1914 (Cth) provides a mechanism for imposing aggregate sentences in Commonwealth matters analogous to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). As Brereton JA did not propose an aggregate sentence on resentencing, that question was left open.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 16A(2)(f) of the Crimes Act 1914 (Cth), a sentencing court is required to consider an offender's contrition as a discrete sentencing factor, separate from (though related to) the offender's prospects of rehabilitation.
  • Conflating contrition with rehabilitation constitutes an error in the application of the Commonwealth sentencing framework, capable of grounding a successful sentence appeal.
  • An offender does not demonstrate a lack of genuine remorse simply by advancing mitigating factors or pointing to features of the offence that reduce its objective seriousness; the Court of Criminal Appeal confirmed that contrition does not demand the forfeiture of legitimate mitigating arguments.
  • Positive conduct beyond the offending itself, including influencing peers to change their behaviour, can constitute relevant evidence of contrition for sentencing purposes.
  • A question remains open as to whether s 19AB of the Crimes Act 1914 (Cth) permits the imposition of aggregate sentences in Commonwealth matters in a manner analogous to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW); the Court in this matter did not resolve it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2)(f), 16BA, 19AB
- Criminal Code Act 1995 (Cth), ss 11.1(1), 302.4, 307.6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Judiciary Act 1903 (Cth), s 68

Cases
- Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Putland v R (2014) 218 CLR 174; [2014] HCA 8
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Mourtada v R [2021] NSWCCA 211
- Omorogbe v R [2013] NSWCCA 201; 234 A Crim R 556
- Onourah v R [2009] NSWCCA 238; 76 NSWLR 1
- El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208
- Matthews v R [2014] VSCA 291; 44 VR 280
- R v Faber [2020] SASCFC 49; 283 A Crim R 219
- Dunning v Tasmania [2018] TasCCA 21
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57