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Court of Criminal Appeal 7 June 2023

Giles-Adams v R; Preca v R

[2023] NSWCCA 122

Drugs

Citation: Giles-Adams v R; Preca v R [2023] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 7 June 2023
Judges: Wright J, Yehia J (principal judgment), Chen J

Background

Two applicants pleaded guilty in the Local Court to one count of attempting to import a commercial quantity of a border-controlled drug (cocaine) under the Criminal Code Act 1995 (Cth). They were among three men found aboard a vessel intercepted approximately 150 nautical miles off the NSW coast. A search revealed between approximately 1,521 and 1,552 kilograms of pure cocaine concealed in the hull.

The sentencing judge imposed a term of 17 years imprisonment on each applicant, with a non-parole period of 10 years, applying a 25% discount. A third co-offender, sentenced separately by the same judge, received 12 years imprisonment with a 7-year non-parole period, following a 20% discount.

Both applicants appealed their sentences on three grounds: that the sentencing judge failed to account for their willingness to facilitate the course of justice, that the objective seriousness assessment was flawed, and that the disparity with the co-offender's sentence was unjustifiable.

  • Whether the sentencing judge erred by failing to take into account the applicants' willingness to facilitate the course of justice as a mitigating factor under s 16A(2)(g) of the Crimes Act 1914 (Cth)
  • Whether the sentencing judge erred in characterising the applicants' roles as falling at "an intermediate level" in the criminal enterprise, given the limited evidence about the broader hierarchy
  • Whether the disparity between the applicants' sentences and the co-offender's sentence gave rise to a justifiable sense of grievance under the parity principle

Decision

Ground 1: Willingness to facilitate the course of justice. The Court found that the sentencing judge's failure to reference the applicants' willingness to facilitate the course of justice constituted error. The factor had been specifically raised and conceded by the Crown at first instance, and the same judge had referred to it when sentencing the co-offender. Its complete absence from the sentencing remarks for the applicants was not explained and could not be overlooked. Wright J added that this factor does not attract an arithmetical discount on its own; rather, it should be reflected in the overall sentencing reasons, distinct from the utilitarian value of a guilty plea.

Ground 2: The "intermediate level" finding. The Court held that the characterisation of the applicants as occupying an "intermediate level" in the criminal hierarchy was not open on the evidence. Without any finding about who sat above or below them in the enterprise, the sentencing judge lacked the factual basis to place the applicants in a mid-tier position. The applicants ought instead to have been sentenced by reference to what each of them actually did in committing the offence, not by reference to an assumed position in a hierarchy that was not established.

Ground 3: Parity. The Court upheld the parity ground. The marked difference between the applicants' 17-year sentences and the co-offender's 12-year sentence was not adequately explained by any established difference in their respective roles. Because the intermediate-level finding underpinning that disparity was itself in error, the sentencing judge had no valid basis for the differential. The Court found that the applicants had a justifiable sense of grievance.

Having upheld all three grounds, the Court re-sentenced the applicants. It adopted a starting point of 18 years imprisonment, applied the 25% guilty plea discount, and acknowledged that the resulting sentences were lenient given the gravity of the offending but were justified by the parity principle relative to the co-offender's sentence.

Orders Made

  • Leave to appeal granted to each applicant
  • Appeal allowed in each case
  • Sentences imposed on 29 October 2021 quashed
  • Each applicant re-sentenced to a non-parole period of 8 years commencing 15 August 2020 and expiring 14 August 2028, with a balance of term of 5 years and 6 months expiring 14 February 2034
  • Each applicant eligible for release to parole at the expiration of the non-parole period

Key Takeaways

  • A sentencing court must address a defendant's willingness to facilitate the course of justice as a distinct mitigating factor under s 16A(2)(g) of the Crimes Act 1914 (Cth), particularly where it has been specifically raised and conceded by the prosecution. Silence on the point, in those circumstances, constitutes error.
  • Under s 16A(2)(g), willingness to facilitate the course of justice does not produce a separate arithmetical sentencing discount; it is a subjective mitigating factor to be reflected in the overall reasons, distinct from the utilitarian value of the guilty plea under s 16A(2)(f).
  • Where a sentencing judge characterises an offender as occupying an "intermediate" role in a criminal hierarchy, that characterisation must be supported by evidence establishing what roles exist above and below. Without that foundation, the finding is not open.
  • The parity principle requires that any marked disparity between co-offenders' sentences be reasonably explicable by genuine differences in their circumstances or culpability. A disparity traceable to an erroneous factual finding cannot justify the differential.
  • The Court of Criminal Appeal confirmed that re-sentencing for proportionality reasons may produce a sentence that appears lenient in absolute terms, where the parity principle requires alignment with a lower co-offender sentence that has not itself been challenged.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.1(1)
- Crimes Act 1914 (Cth), ss 16A, 16A(2)(f), 16A(2)(g)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 25D
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Baden v R [2020] NSWCCA 23
- Bae v R [2020] NSWCCA 35
- Bertilone v R (2009) 197 A Crim R 78
- Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191
- Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60
- Director of Public Prosecutions (Cth) v Thomas (2016) 262 A Crim R 198; [2016] VSCA 237
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen (2010) 204 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Magro v R [2020] NSWCCA 25
- Mulato v R [2006] NSWCCA 282
- Ooi v R [2023] NSWCCA 97
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Lee [2007] NSWCCA 234
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Thomson; R v Houlten (2000) 49 NSWLR 383; [2000] NSW