Gwardys v R

1. [1]

   PAYNE JA: I have read the decision of Bellew J in draft. I agree with his Honour that error has been established in the failure to take into account the utilitarian discount for the early plea of guilty. This is unsurprising as the sentencing took place before Xiao v R [2018] NSWCCA 4 was decided. It is thus necessary for this Court to itself sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

2. [2]

   I agree with Bellew J, for the reasons he gives, that no lesser sentence is warranted in this case. I agree with the orders proposed by his Honour.

3. [3]

   BELLEW J: On 29 March 2017, Patryk Krzysztof Gwardys (the applicant) pleaded guilty before the Local Court to a charge of importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code 1995 (Cth) (the Code). The marketable quantity of cocaine is 2 grams [1] . The offence carries a maximum sentence of 25 years imprisonment and/or a fine of $900,000.00.

4. [4]

   On 13 October 2017 the applicant was sentenced by her Honour Judge Wass SC in the District Court to imprisonment for 6 years commencing on 1 December 2016 with a non-parole period of 4 years. The applicant is eligible for release on parole on 30 November 2020 and his total sentence will expire on 30 November 2022.

5. [5]

   The applicant now seeks leave to appeal against that sentence.

The nature and circumstances of the offending

1. [6]

   An agreed statement of facts was tendered before the sentencing judge, on the basis of which her Honour found the facts of the offending to be as follows: [2]

The applicant’s role

1. [7]

   Her Honour made the following findings as to the applicant’s role [3] :

2. [8]

   In terms of the applicant’s motivation for his offending, her Honour made the following findings: [4]

The applicant’s subjective case

1. [9]

   The applicant gave evidence before the sentencing judge. He explained that his marriage had suddenly broken down in 2016 and described his general mental state at that time as one of “pretty deep depression (and) shock”, all of which had led to “a big withdrawal from everyone”, and which had triggered a dependence upon drugs and alcohol. [5] He said he decided to travel to Australia, and that after he had booked his trip he was approached by those from whom he was buying cocaine who suggested he take some with him. [6] He said that his understanding was that he was to carry approximately half a kilograms of cocaine, [7] and that he was told that he would “get some drugs as well as (his) trip paid for”. [8]

2. [10]

   The applicant told the sentencing judge [9] that as the date of his departure drew closer he started to have second thoughts about undertaking a trip carrying drugs, but that when he approached those who had engaged him they told him that it was too late to withdraw. The applicant said [10] that it was about this time that he was threatened, although his evidence in this respect was somewhat vague. When asked about the form that the threats took the applicant said: [11]

3. [11]

   The applicant went on to say that there was no specific mention of what kind of harm might come to him, but that he understood that it would be in the form of violent assaults, such as bashings or stabbings. [12] He agreed that when he was apprehended upon arrival into Australia, he made no mention to Border Force Officials, Australian Federal Police or hospital staff about the threats allegedly made to him. He also agreed [13] that a period of 4 or 5 months had elapsed between the time he was approached to carry the drugs, and the time that he was due to leave for Australia.

4. [12]

   The applicant gave evidence that since being taken into custody he had been employed both in a print shop and in a clerical position, and had not been disciplined at any time by the corrective authorities. [14] He also said [15] that he had attempted to enrol in a number of courses, including those directed to controlling drug and alcohol consumption, but had been told that he could not do so until he had been sentenced.

5. [13]

   Also before the sentencing judge was a report of Dr Allnutt, Psychiatrist, dated 25 September 2017. The account given by the applicant to Dr Allnutt regarding the offending was generally consistent with his sworn evidence. In terms of psychiatric illness, Dr Allnutt expressed the following conclusion: [16]

6. [14]

   In addressing the issue of the applicant’s mental state at the time of the offending, Dr Allnutt noted [17] that the applicant had offended in the context of drug and alcohol abuse, and associated social withdrawal. It was Dr Allnutt’s opinion that the applicant had an underlying depressive disorder at the time, which was acting as a driver to his substance abuse. [18] Dr Allnutt concluded that the applicant showed insight into the effect of his substance abuse, that he presented as remorseful, and that he had good prospects of rehabilitation.

7. [15]

   A large number of character references were tendered in the applicant’s case on sentence. They generally described the applicant as a hardworking man who had experienced the trauma of an unexpected marital breakdown, and for whom this offending was out of character.

8. [16]

   The sentencing judge reached the following conclusions regarding the applicant’s subjective case [19] :

9. [17]

   In relation to the applicant’s drug use and mental health issues her Honour said: [20]

10. [18]

    Her Honour found that the applicant was genuinely remorseful, that he had accepted responsibility for his offending, and that by his plea of guilty he had shown a willingness to facilitate the course of justice [21] . Her Honour did not specify the discount which she applied to reflect the applicant’s plea, and made no reference to the utilitarian value of that plea. Her Honour noted [22] that the applicant had no criminal record, and she took into account the testimonial material which was tendered on his behalf. Her Honour also found that the applicant was a person of otherwise good character although in reaching that finding, she noted that this is invariably the case in offending of this nature. [23] She found that the applicant had been an exemplary prisoner and that he demonstrated “good potential for rehabilitation”. [24]

11. [19]

    Her Honour noted [25] that she had been asked to consider the fact that upon his release to parole it would be likely that the applicant would be detained in immigration detention before being deported. Although her Honour accepted that the applicant was at risk of deportation, and at risk of detention prior to deportation, she concluded that because these were matters over which she had no control, they could not be taken into account on sentence. [26]

THE GROUNDS OF APPEAL

1. [20]

   Although a number of grounds of appeal were initially relied upon, it is appropriate to go directly to ground 2.

The findings of the sentencing judge

1. [21]

   Having noted that the applicant entered a plea of guilty at the first available opportunity, the sentencing judge said: [27]

Submissions of the applicant

1. [22]

   It was submitted on behalf of the applicant that as a consequence of the decision of this Court in Xiao v R, [28] her Honour had erred in failing to afford the applicant a discount of 25% in recognition of the utilitarian value of his plea.

Submissions of the Crown

1. [23]

   The Crown conceded that in view of this Court’s decision in Xiao, as well as this Court’s decision in Jinde Huang aka Wei Liu v R, [29] this ground was made out.

CONSIDERATION

1. [24]

   In submissions before the sentencing judge, the Crown’s then representative submitted that a discount could not be given to reflect the utilitarian value of the applicant’s plea of guilty, but that as a federal offender he could obtain a discount if his plea demonstrated the subjective mitigation of genuine remorse, acceptance of responsibility, and/or a willingness to facilitate the course of justice.

2. [25]

   It was accepted that the applicant’s plea had been entered at the first available opportunity. As noted above, her Honour took that plea into account as an indication of the applicant’s willingness to facilitate the course of justice. However, she did not apply a specific discount in recognition of the plea, nor did she specifically refer to its utilitarian value.

3. [26]

   Subsequent to the applicant’s sentence proceedings, this Court published its judgments in Xiao and Liu. In Xiao, this Court concluded [30] that in sentence proceedings governed by s 16A of the Crimes Act 1914 (Cth) (“the Act”), a sentencing judge is entitled to take into account the utilitarian value of a plea of guilty. The Court further noted [31] that s 16A(2)(g) of the Act, which mandates that the Court take into account the fact of a plea of guilty, neither requires nor prohibits the specification of a discount, but that it was desirable, in the interests of transparency, that such discounts be specified. However, the Court pointed out that a failure to specify the discount would not, of itself, amount to error.

4. [27]

   In Liu, the sentencing judge had not referred to the utilitarian value of the pleas of guilty which had been entered. This Court found that in those circumstances, the only available conclusion was that the sentencing judge had failed to have regard to that factor. [32] The situation is the same in the present case. Her Honour did not refer to the utilitarian value of the plea and in my view, the only available conclusion is that she did not take it into account.

5. [28]

   In these circumstances, and as was conceded by the Crown, error is established. This Court must therefore re-sentence the applicant in the fresh exercise of the sentencing discretion. As error has been found, it is not necessary to consider the remaining grounds of appeal, including that which asserted that the sentence was manifestly excessive. However, I have had regard to the submissions of the parties in relation to that ground in re-sentencing the applicant.

Submissions of the applicant

1. [29]

   In terms of re-sentence, senior counsel for the applicant pointed to a number of factors, including the applicant’s early plea of guilty, and the subjective material tendered on his behalf. Senior counsel stressed the unchallenged evidence that the applicant had suffered an entirely unexpected marital breakdown which had caused him to resort to the use of alcohol and illicit drugs. Senior counsel also emphasised the applicant’s evidence about being threatened prior to his departure for Australia.

2. [30]

   In the course of his submissions, senior counsel for the applicant referred this Court to a report of the Victorian Sentencing Advisory Council released in March 2015 entitled “Major Drug Offences – Current Sentencing Practices” (the Report). In doing so, senior counsel, as I understood it, sought to bring the circumstances of the applicant’s case within a particular category of offending, and a particular range of sentencing statistics, published in the report.

3. [31]

   Finally, senior counsel sought to rely upon four other sentences imposed for similar offences in the District Court. He pointed out that in each of those cases, a lesser sentence had been imposed than that imposed on the applicant, in circumstances where, it was submitted, the criminality of the respective offenders was greater.

Submissions of the Crown

1. [32]

   The Crown pointed to the circumstances of the offending generally, and to the applicant’s role in particular. The Crown also pointed to the maximum penalty which, it was submitted, served as both a sentencing yardstick, and a reflection of the seriousness with which Parliament viewed this offending.

2. [33]

   The Crown submitted that even if it were accepted that the role of the applicant was less than that played by others who were involved, it did not follow that the applicant was entitled to any particular degree of leniency. This, the Crown submitted, was particularly so in circumstances where the amount of pure cocaine imported, namely 391.5 grams, was obviously substantial, and well in excess of the marketable quantity of 2 grams.

3. [34]

   The Crown did not argue against the proposition that the applicant was entitled to a discount of 25%. However, the Crown pointed to the need for any sentence to take into account the need for general deterrence, and the need for adequate punishment.

4. [35]

   The Crown further submitted that the Report relied upon by senior counsel for the applicant was of little or no utility. The Crown pointed out, in particular, that the statistics set out in the report were not drawn from cases dealt with under the Code, but from cases dealt with under legislation in Victoria.

5. [36]

   Finally, the Crown submitted that the applicant’s reliance upon sentences imposed in other (completely unrelated) cases was misconceived because the parity principle did not apply to the sentencing of persons who are not co-offenders.

CONSIDERATION

1. [37]

   The applicant is to be sentenced in accordance with Part 1B of the Act. Section 16A(1) provides that in determining the sentence which is to be passed, a Court must impose a sentence, or make an order, that is of a severity appropriate in all of the circumstances. In addition, s 16A(2) sets out a number of mandatory factors which are to be taken into account, to the extent that they are applicable. However, before going considering those factors it is appropriate to address two discreet matters arising out of the submissions made on behalf of the applicant.

2. [38]

   In Hili v R; Jones v R [33] the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed (inter alia) [34] that the consistency which sought in sentencing is consistency in the application of the relevant legal principles and the relevant statutory provisions, not some numerical or mathematical equivalence. The Court also observed [35] that presentation of sentences imposed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. These principles were later affirmed by the Court in R v Pham [36] .

3. [39]

   In these circumstances, the submissions by senior counsel that the applicant’s offending should be placed within a particular category or range set out in the Report, and a determination then made as to the appropriate sentence, reflects an erroneous approach. Moreover, as the Crown pointed out, the Report was concerned with offending contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The applicant was not charged with any offence contrary to that Act.

4. [40]

   Further, and again in light of the observations of the High Court, the applicant’s reliance upon sentences imposed in the District Court in cases which were entirely unrelated, was misplaced. To the extent that the applicant’s reliance on those decisions sought to invoke the parity principle, such principle does not apply to sentences imposes upon persons who are not co-offenders. Comparing a sentence directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics, and may have committed similar crimes, reflects an erroneous approach. [37]

5. [41]

   Those matters having been addressed, I turn to consider the factors, insofar as they are applicable, set out in s 16A of the Act.

The need for adequate punishment – s 16A(2)(k)

1. [42]

   I have set out the nature and circumstances of the offence by reference to the remarks of the sentencing judge. The applicant’s criminality must be assessed by a consideration of his involvement in the steps which were taken to effect the importation. Importantly, it is his criminality which must be assessed. The fact that another person may be characterised as the “mastermind” does not mean that a person in the applicant’s position, who was responsible for effecting the actual importation into Australia, is properly described as having only a middle (or indeed, lower) level of responsibility. [38] The relevant inquiry must centre upon what the applicant actually did. [39]

2. [43]

   Put simply, the applicant imported a significant quantity of a prohibited drug into Australia. In doing so, he helped to facilitate and promote large scale international drug trafficking. Even if it is accepted that his place in some notional hierarchy was low, that does not mean that his role was insignificant. On the contrary, without him performing the role that he did, the importation could not have been effected.

3. [44]

   Further, and although the weight of the drug imported is not the principal factor to be considered when fixing sentence, it is necessarily relevant. [40] The quantity of cocaine which was imported was more than 200 times the marketable quantity. The issue of quantity has increased significance when the offender is aware of the amount of the drugs imported. [41] In the present case, the applicant ingested the drug himself. He must have been aware, at least in general terms, how much he was carrying. It is also clear that the applicant, on his own admission, was undertaking this venture for profit, in terms of both money and drugs.

4. [45]

   I place little weight on the applicant’s evidence that of having been threatened. As I have pointed out, his evidence in that respect was vague and the first time any such assertion was made was in evidence before the sentencing judge. The applicant said nothing at all about alleged threats at the time of his arrest. However, I do accept that the trauma surrounding the applicant’s marital breakdown played some part in triggering a course of behaviour which culminated in his offending and led to his increased use of alcohol and illicit drugs.

5. [46]

   In all of these circumstances, the only available conclusion is that the offending was of considerable seriousness, and the applicant’s criminality significant.

Contrition – s 16A(2)(f)

1. [47]

   The general tenor of the applicant’s evidence before the sentencing judge, as well as the contents of testimonial material tendered on his behalf, was that he is remorseful for his offending. Dr Allnutt also expressly referred to the applicant’s remorse. [42] I accept that the applicant is contrite.

The plea of guilty – s 16A(2)(g)

1. [48]

   The applicant pleaded guilty at the first available opportunity in the Local Court. In accordance with the authorities to which I have previously referred, he is entitled to a discount of 25% to reflect the utilitarian value of his plea.

General deterrence – s 16A(2)(ja)

1. [49]

   The difficulty of detecting offending of this type, and the great social consequences that follow, mean that general deterrence is to be given considerable weight on sentence. Stern punishment will be warranted in almost every case. [43] Any sentence must signal to those who might be tempted to offend in this same way that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment, and that involvement at any level in a drug importation offence will necessarily attract a significant sentence. If it is otherwise, the necessity for general deterrence will not be served.

Character, antecedents, cultural background, means and physical or mental condition of the offender – s 16A(2)(m)

1. [50]

   The applicant is a person of no prior convictions, and a person of prior good character. Equally however, it has been recognised that good character is not an unusual characteristic of persons who are involved, at this level, in this type of offending. [44] It is not uncommon for persons who physically import drugs to be specifically selected for that task because of their blameless background, in the hope that the authorities will pay less attention to the venture which is being undertaken. It follows that the prior good character of a person involved in a drug importation offence is generally given less weight as a mitigating factor on sentence. [45]

Prospects of rehabilitation – s 16A(2)(n)

1. [51]

   Dr Allnutt reported that the applicant has not used illicit drugs since his arrest and has made attempts to enrol in courses directed to drug and alcohol rehabilitation. [46] Dr Allnutt was of the view that the applicant demonstrated good prospects of rehabilitation. [47] I am satisfied that this is the case.

CONCLUSION

1. [52]

   In all of the circumstances, and in the fresh exercise of the sentencing discretion, I have come to the view that no lesser sentence than that imposed by the sentencing judge is warranted. In these circumstances, I propose the following orders:

2. [53]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

3. [54]

   CAMPBELL J: I have had the considerable advantage of reading the judgment of Bellew J in draft. I agree with his Honour’s reasons and the orders he proposes.

4. [55]

   As Bellew J has pointed out, the decisions of this Court in Liu v R, and Xiao v R have altered our understanding of s 16A(2)(g) of the Crimes Act 1914 (Cth) in as much as when a court takes into account the fact of a plea of guilty while sentencing for a Commonwealth offence it is entitled to have regard to the utilitarian value of the plea. This means that where a sentencing judge has proceeded on the basis of the previous understanding of the law in passing sentence for a Commonwealth offence as here, House v the King error may, not must, be demonstrated. Such an error requires this Court to re-exercise the sentencing discretion for itself in order to determine whether, having corrected the error, and reconsidered all facts, matters and circumstances relevant to the offence and the offender, some other, usually lesser, sentence is warranted in law. Even, as in this case, where correction of the error would permit the allowance of a discount specified in percentage terms from the sentence that would otherwise be passed, it does not necessarily follow that a lesser sentence will be produced.

5. [56]

   Her Honour Judge Wass SC took into account the plea of guilty in accordance with the previous understanding of the law. I agree with Bellew J’s analysis, and like him I conclude no other sentence is warranted in law.