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Court of Criminal Appeal 29 April 2024

Shalida v R

[2024] NSWCCA 55

Drugs

Citation: Shalida v R [2024] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 29 April 2024
Judge(s): Gleeson JA (principal judgment); Rothman J and Cavanagh J (agreeing)

Background

The appellant pleaded guilty in the District Court to two offences: attempting to possess a marketable quantity of an unlawfully imported border-controlled drug (63.17 grams of pure cocaine), contrary to the Criminal Code Act 1995 (Cth); and possessing 13.57 grams of cannabis under the Drug Misuse and Trafficking Act 1985 (NSW). The cocaine had been concealed in a plywood box shipped from Peru, addressed to a third party's home in Hurstville. The appellant had arranged for the package to be delivered to that address without the third party's prior consent, and made multiple phone calls inquiring about the delivery.

The District Court sentenced the appellant to 2 years and 6 months' imprisonment for the Commonwealth offence, with release after 15 months on a recognizance. A conviction was recorded for the cannabis offence without further penalty.

The appellant, self-represented before the Court of Criminal Appeal, sought leave to appeal the severity of his sentence on five grounds.

  • Whether the sentencing judge failed to address submissions relating to rehabilitation
  • Whether the sentencing judge erred in finding a moderate prospect of reoffending and in doubting the genuineness of the appellant's remorse
  • Whether the sentencing judge misapplied the principles governing the utilitarian discount for a guilty plea
  • Whether the sentencing judge failed to consider the appropriateness of an immediate recognizance release (that is, release on a good behaviour bond from the outset without serving any custodial term)
  • Whether the sentence was manifestly excessive
  • As a procedural matter, whether the time the appellant spent at liberty on appeal bail should be accounted for in adjusting the sentence

Decision

The Court granted leave to appeal but dismissed all five grounds. On rehabilitation and remorse, the Court found that the sentencing judge had in fact addressed the relevant submissions, and that her findings on moderate reoffending risk and qualified remorse were open on the evidence before her. No appellable error was established on those grounds.

On the guilty plea discount, the Court found no misapplication of principle. The plea was entered approximately 13 months after the appellant was charged, and after he had initially pleaded not guilty and been committed for trial. The sentencing judge's assessment of the utilitarian value of the plea in those circumstances was within the proper exercise of discretion.

On the question of an immediate recognizance, the Court found that the sentencing judge had considered and rejected that option, and that this was an available exercise of discretion given the objective seriousness of the offence. The maximum penalty for the Commonwealth offence is 25 years' imprisonment, and the quantity involved was above the marketable threshold.

The Court also rejected the manifest excess ground, finding that the sentence was not unreasonable or plainly unjust when assessed against the relevant sentencing principles and comparable cases. Because the appellant had been on appeal bail for 353 days (from 12 May 2023 to 28 April 2024), the Court adjusted the sentence commencement date to account for that period, as required by the Criminal Appeal Act 1912 (NSW).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), the appellant's sentence recommenced on 29 April 2024
  • The 353 days from 12 May 2023 to 28 April 2024 (inclusive) do not count as part of the sentence of imprisonment
  • The appellant to be released on 16 January 2025, having served 15 months in total, on entering a recognizance of $2,000 (without surety) to be of good behaviour for 3 years from that date
  • Sentence to expire on 16 April 2026; good behaviour period to expire on 16 January 2028

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's findings on remorse and reoffending risk will not be disturbed on appeal unless an appellable error is clearly demonstrated; qualified findings on those matters remain within the proper exercise of sentencing discretion.
  • A guilty plea entered after an initial not-guilty arraignment and following plea negotiations will generally attract a more limited utilitarian discount than an early plea, reflecting the reduced practical benefit to the criminal justice system.
  • Where a Commonwealth drug offence carries a maximum of 25 years' imprisonment and involves a marketable quantity, an immediate recognizance release is not required, and a sentencing court's refusal of that option may be an entirely open exercise of discretion.
  • Under ss 18(2) and 28A of the Criminal Appeal Act 1912 (NSW), time spent at liberty on appeal bail does not count toward the sentence, and the Court of Criminal Appeal holds power to adjust the sentence commencement date when dismissing an appeal to account for that period.
  • No error was established in the sentencing judge's application of the relevant Commonwealth sentencing framework under Pt 1B of the Crimes Act 1914 (Cth), including the s 20(1)(b) recognizance release mechanism.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.2, 307.6
- Crimes Act 1914 (Cth), Pt 1B, ss 16A, 16BA, 17A, 20(1)(b)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 18(2), 28A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 48
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases
- Rao v R [2019] NSWCCA 290
- JC v R [2023] NSWCCA 231
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242
- Bae v R [2020] NSWCCA 35
- Moodie v R [2020] NSWCCA 160
- Green v R [2022] NSWCCA 230
- Patel v R [2022] NSWCCA 93
- Barnes v R [2022] NSWCCA 140
- Obeid v R [2017] NSWCCA 221
- Boutros v R [2015] NSWCCA 171
- Khoury v R [2011] NSWCCA 118
- Ahmad v R [2006] NSWCCA 177