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Cressel v The Queen

Cressel v The Queen

Case [2021] NSWCCA 26 8 March 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Cressel v R [2021] NSWCCA 26
Hearing dates: 1 March 2021
Date of orders: 8 March 2021
Decision date: 08 March 2021
Before: Gleeson JA at [1]
Harrison J at [2]
Bellew J at [3]
Decision:
1. The time in which to file an application for leave to appeal is extended to 28 September 2020.
2. Leave to appeal is granted.
3. The appeal is allowed.
4. The sentences imposed in the District Court are quashed.
5. In lieu thereof, the applicant is sentenced as follows:
(a) In respect of count 2, imprisonment for 6 years and 6 months commencing on 29 April 2016 and expiring on 28 October 2022.
(b) In respect of count 1, imprisonment for 9 years commencing on 29 April 2017 and expiring on 28 April 2026.
(c) The total effective sentence is 10 years imprisonment.
(d) I impose a single non-parole period of 6 years imprisonment commencing on 29 April 2016 and expiring on 28 April 2022.

Catchwords:
CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of importing a commercial quantity of a border controlled drug and one count of importing a marketable quantity of a border controlled drug – Where sentencing judge erred by failing to take into account the utilitarian value of the applicant’s plea of guilty – Error established – Where plea was entered at the first available opportunity – Where additional discount applied to reflect the applicant’s assistance to the authorities – Genuine remorse and good prospects of rehabilitation – Where applicant’s conditions of custody rendered more onerous as a consequence of an incident in custody which was no fault of the applicant – Applicant resentenced

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)

Cases Cited:
Cotter v R [2020] NSWCCA 299
Diaz v R [2019] NSWCCA 216
Gwardys v R [2019] NSWCCA 62
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
Makarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Okafor v R [2007] NSWCCA 147
Onuorah v R (2009) 76 NSWLR 1; [2009] NSWCCA 238
R v Amati [2019] NSWCCA 193
R v Barrientos [1999] NSWCCA 1
R v Bimendali [1999] NSWCCA 409; (1999) 109 A Crim R 355
R v Elfar [2003] NSWCCA 358
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451
R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524
R v Si Thanh To [2007] NSWCCA 200; (2007) 172 A Crim R 121
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Weber v R [2020] NSWCCA 103
Wong v The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cressel v The Queen

Details

AGLC: Cressel v The Queen [2021] NSWCCA 26
Case: [2021] NSWCCA 26
Decision Date: 08 March 2021

CaseChat Overview and Summary

The case of Cressel v The Queen involves an application for leave to appeal against a sentence imposed by the sentencing judge. The applicant had pleaded guilty to two counts of importing a commercial and marketable quantity of a border controlled drug. The applicant sought to appeal the sentence on the basis that the sentencing judge failed to adequately consider the value of the applicant's plea of guilty. The High Court was tasked with determining whether the error in not considering the utilitarian value of the plea was significant enough to warrant a new sentencing hearing.

The legal issue at the heart of the case was whether the sentencing judge's failure to properly account for the utilitarian value of the applicant's plea of guilty constituted a significant error. The court had to consider the impact of the plea discount, the timing of the plea, and the applicant's assistance to the authorities, along with their genuine remorse and prospects for rehabilitation. Additionally, the court needed to assess whether the applicant's conditions of custody, exacerbated by an unrelated incident, warranted consideration in the resentencing process.

In ruling on the matter, the court found that the sentencing judge's failure to consider the utilitarian value of the applicant's plea of guilty was indeed a significant error. The court noted that the plea was entered at the earliest opportunity and that the applicant had provided substantial assistance to the authorities. The court also took into account the applicant's genuine remorse and positive prospects for rehabilitation. Furthermore, the court acknowledged the impact of the unrelated incident in custody, which had worsened the applicant's conditions. Consequently, the court allowed the appeal and ordered a resentencing hearing.

The final orders of the court were that the applicant's appeal against sentence be allowed, and a resentencing hearing be conducted. This decision underscores the importance of considering all relevant factors, including the value of a guilty plea, in the sentencing process.

Orders