Duflaut v The Queen

[2019] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Duflaut v R [2019] NSWCCA 21
Hearing dates:	30 January 2019
Date of orders:	13 February 2019
Decision date:	13 February 2019
Before:	Hoeben CJ at CL Wright J Fagan J
Decision:	(1) Time is extended so far as necessary to permit the application for leave to appeal against sentence to proceed on its merits. (2) Leave to appeal is granted. (3)The sentence imposed in the District Court on 6 October 2017 is set aside. (4)In lieu thereof the applicant is sentenced to imprisonment for a term of 5 years and 3 months commencing on 7 August 2016 and expiring on 6 November 2021 with a non-parole period of 3 years and 6 months commencing on 7 August 2016 and expiring on 6 February 2020. The earliest date the applicant may be released to parole is 6 February 2020.
Catchwords:	CRIMINAL LAW -sentence - importing and exporting marketable quantities of border controlled drugs or border controlled plants – joint commission – whether his Honour erred in not allowing a discount for the utilitarian value of the plea of guilty – whether his Honour erred in the manner in which he dealt with the weight of the border controlled drug – whether there is a justifiable sense of grievance – disparity between sentence imposed on appellant and sentence imposed on co-offender
Legislation Cited:	Criminal Code (Cth)
Cases Cited:	Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 Sintat v R [2018] NSWCCA 165 Xiao v R [2018] NSWCCA 4
Category:	Principal judgment
Parties:	Regina Cedric Duflaut
Representation:	Counsel: R Ranken (Crown) A Hughes (Applicant)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Robert Watson Lawyers (applicant)
File Number(s):	2016/238355
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court Sydney Jurisdiction: Criminal Date of Decision: 06 October 2017 Before: Buscombe DCJ File Number(s): 2016/238355

Judgment

1. THE COURT: On 15 December 2016, upon first arraignment in the District Court at Sydney, the applicant pleaded guilty to a charge that on about 7 August 2016 he did import a marketable quantity of a border controlled drug, namely cocaine, contrary to s 307.2(1) of the Criminal Code (Cth). On 29 September 2017 a sentencing hearing took place before his Honour Judge Buscombe and on 6 October 2017 the applicant was sentenced to imprisonment for 5 years and 6 months with a non-parole period of 3 years and 8 months. He now seeks leave to appeal against that sentence.

2. The maximum penalty for the offence is 25 years imprisonment and/or a pecuniary penalty of 5,000 penalty units ($900,000). The applicant was arrested on the day of the offence and has been in custody since. On 30 November 2016 in the Local Court he waived his right to a committal hearing. In those circumstances his entry of a plea of guilty upon arraignment before a trial date had been fixed may properly be regarded as a plea at the first opportunity. The learned sentencing judge allowed an unspecified discount for the plea. The sentence was passed before this Court handed down its decisions in Xiao v R [2018] NSWCCA 4 and Jinde Huang aka Wei Liu v R [2018] NSWCCA 70. In discounting the applicant’s sentence the learned judge did not allow for the purely utilitarian value of the plea.

3. The amount of pure cocaine imported was 63.5 g. The statutory range of a marketable quantity is from 2 g to 2 kg. Hence the amount which was the subject of this charge was approximately 1/30 of the upper limit. In his Honour’s remarks on sentence he referred to the amount as “a little less than one third of the upper limit”.

4. A co-offender, Ms Delphine Sintat, was involved in the importation. She was also sentenced by his Honour on 6 October 2017. A term of 3 years imprisonment was imposed with an order for release on recognizance after 2 years. Her appeal against sentence was dismissed by this Court on 25 July 2018: Sintat v R [2018] NSWCCA 165.

5. The grounds of appeal for which leave is now sought by the applicant Cedric Duflaut are as follows:

1   His Honour erred in not allowing a discount for the utilitarian value of the plea of guilty.

2   His Honour erred in the manner in which he dealt with the weight of the border controlled drug.

3   The marked disparity in the sentences between the co-offender, Ms Sintat, and the appellant are such as to give rise to a justifiable sense of grievance.

The facts of the offence

6. The details of the offence were found by his Honour on the basis of an agreed statement of facts and oral evidence of both offenders. The applicant is a French national who has lived in the suburbs of Paris all his life apart from five years as a child when he lived with his maternal grandmother in Martinique. At the date of the offence he was 35 years old. He gave evidence, which his Honour apparently accepted, that he was approached by an acquaintance at a soccer club to arrange carriage of the subject drug by air from France to Australia. The applicant had known this acquaintance for some 15 years. The applicant was offered €2,000 for his participation, half to be paid upon delivery of the drugs in Australia and half upon his return to France.

7. In late July 2016 the applicant approached Ms Sintat, then aged 29 years, to be the courier. Over the next two weeks he assisted her to obtain a passport and visa. He caused another person, apparently located in Australia, to book and pay for his own and Ms Sintat’s air travel from Paris to Sydney. The applicant acted as intermediary to obtain the drug in Paris and have it packaged suitably for Ms Sintat to secrete it in her vagina. He communicated with her by text to ascertain the optimal shape of the package and find out what weight of drug she could conceal in this manner.

8. The appellant agreed in oral evidence that he conveyed instructions as to how the drug should be packaged to another person who was to procure it. When the drug had been wrapped in plastic and made up in an egg shape the appellant obtained a photograph of this and sent it to Ms Sintat for her consideration as to whether she could accommodate the package. It contained 100 g. The applicant’s text messages to Ms Sintat referred to the proposed contraband as “gold” but clearly he was well aware of its real nature. Despite Ms Sintat’s prevarication about this in evidence, his Honour was satisfied beyond reasonable doubt that she also knew she would be importing a drug.

9. During the first week of August 2016 the applicant sent a series of messages to the person in Australia who was to arrange air travel for himself and Ms Sintat. He pressed for tickets to be issued and stated that if the bona fides of the plan were not quickly demonstrated to Ms Sintat she might withdraw. The tickets were eventually provided. The applicant and Ms Sintat departed Paris on a flight which arrived in Sydney on the afternoon of 7 August 2016. At Sydney International airport they were questioned by Border Force officers. The drugs concealed in Ms Sintat’s vagina were revealed by radiological examination. The two offenders were arrested the same day and they remained in custody up until the date sentence was passed. Ms Sintat also pleaded guilty in the District Court.

10. His Honour found that the applicant

clearly had an organising role and a “minder” role in terms of ensuring that Ms Sintat arrived in Australia and delivered the cocaine to the persons in Australia who were also concerned in the importation.

Further, his Honour found that the applicant was instrumental in recruiting Ms Sintat and in facilitating her courier role by obtaining a passport for her and having the package prepared to her requirements. The learned judge assessed the applicant’s offence as “below the mid-range of objective seriousness”.

11. His Honour characterised Ms Sintat’s role as that of a courier with no involvement in organising the importation. There was no evidence that she was to make any financial gain or to receive any form of benefit beyond a free trip to Australia. Her offence was found to be “well below the mid-range level of seriousness”, an assessment expressly accepted by this Court in the determination of her appeal (at [33]).

Errors conceded

12. The Crown concedes ground 1. In not allowing for the purely utilitarian value of the applicant’s plea of guilty, his Honour followed the principles of sentencing for Commonwealth offences as they were understood at the time. This Court’s subsequent decisions have altered that understanding with the consequence that, through no fault of the learned sentencing judge, the ground must be upheld. The Crown also concedes ground 2, being his Honour’s mistake that the quantity of the drug imported was 1/3 rather than 1/30 of the upper limit of a marketable quantity.

13. It follows that the Court must proceed to resentence. It is not necessary to consider separately ground 3 (parity with the sentence imposed upon Ms Sintat) but in resentencing the applicant relativity between his sentence and that of his co-offender must of course be taken into account.

The applicant’s subjective circumstances

14. In order to resentence it is necessary to have regard the applicant’s background and personal circumstances. He has no prior convictions either here or in France. As the learned sentencing judge noted, the absence of a criminal record is to be taken into account but can be given only limited weight because it is common that persons with clear records will be selected for a role such as he fulfilled in this case, as the minder of a courier, so as not to attract the suspicion of border officials.

15. The applicant has two older brothers and four half siblings from his mother’s second relationship. His mother and father separated while he was in Martinique between the ages of 1 and 6 years. In his teens the applicant lived in a poor area of Paris, where crime and drug use were common, until his mother and stepfather moved the family to a better area. The applicant completed school to the equivalent of the Higher School Certificate but did not pass at that level. He then became a personal trainer and was employed in that role for 10 years with a sporting club. This employment ended 2 years before the offence as a result of the applicant suffering ligament damage to his knee. The applicant was in receipt of Social Security payments during the 2 years immediately preceding the offence. The applicant denied that he had at any time engaged in substance or alcohol abuse. He said two of his half siblings had abused drugs and one of them was diagnosed with schizophrenia, allegedly caused by drug use.

16. A psychologist who prepared a report for the sentence proceedings found that the applicant had no psychiatric or personality disorders nor any cognitive deficit. She thought he was at a low to moderate risk of reoffending. His Honour assessed the applicant’s prospects of rehabilitation as good. We have taken into account an affidavit of the applicant sworn 9 January 2019 which describes his conduct in prison and annexes Department of Corrective Services case notes. The affidavit and case notes indicate good conduct as a prisoner and constructive use of his time in custody, undertaking work where available and engaging in educational programs. The assessment of good prospects of rehabilitation is thereby supported.

17. The applicant has been in a relationship with a female partner in France since March 2013 and they have a child who was aged 3 ½ years when sentence was passed in the District Court. Correspondence tendered to the learned judge demonstrated some degree of remorse on the part of the applicant and some additional hardship for him in prison in Australia through distant separation from his partner, their child and other members of his family. This hardship is confirmed in his affidavit. However it is an inevitable incident of the commission of a crime in a country far from his home. Very little weight can be given to it. The applicant’s imprisonment has had and will continue to have an adverse impact on his partner and child and other family members. Again, this impact on third parties as described in the applicant’s affidavit cannot, in the circumstances of this case, mitigate his penalty.

Decision on resentence

18. We will allow a discount of 25% for the applicant’s plea of guilty, as was allowed to Ms Sintat on the hearing of her appeal (at [37]). In the applicant’s case we consider that an appropriate starting point sentence would be 7 years. After applying the 25% discount his head sentence should be 5 years and 3 months. The learned sentencing judge fixed a non-parole period which was two thirds of the head sentence. We consider that proportion to be appropriate. Hence the applicant’s non-parole period should be 3 years and 6 months. The Court considers that resentencing the applicant in this manner maintains a level of difference between his punishment and that of the co-offender which fairly reflects the differences in their roles. The degree of difference necessary to maintain an appropriate relationship between the respective sentences is a matter of broad discretionary judgment. It is not a matter of precise mathematical calculation capable of yielding a single correct answer.

19. In Ms Sintat’s case, after applying a 25% discount and taking into account that the quantity of drug was 1/30 of the upper limit of a marketable quantity, this Court was of the view that the “mandatory period of imprisonment of 2 years imposed by the judge is the minimum period that [Ms Sintat] should spend in custody to appropriately reflect the criminality of the offending” (at [40]). Although the same conceded errors affected the sentences passed on both offenders at first instance, the outcome that a lesser sentence has been found warranted for the applicant but not for Ms Sintat simply reflects that, even under the influence of the two errors, his Honour fixed a moderate sentence for Ms Sintat which could not properly be further reduced.

20. For these reasons the orders of the Court will be:

1. Time is extended so far as necessary to permit the application for leave to appeal against sentence to proceed on its merits.

2. Leave to appeal is granted.

3. The sentence imposed in the District Court on 6 October 2017 is set aside.

4. In lieu thereof the applicant is sentenced to imprisonment for a term of 5 years and 3 months commencing on 7 August 2016 and expiring on 6 November 2021 with a non-parole period of 3 years and 6 months commencing on 7 August 2016 and expiring on 6 February 2020. The earliest date the applicant may be released to parole is 6 February 2020.

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Decision last updated: 13 February 2019