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

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.
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…

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 Duflaut v The Queen

Details

AGLC: Duflaut v The Queen [2019] NSWCCA 21
Case: [2019] NSWCCA 21
Decision Date: 13 February 2019

CaseChat Overview and Summary

In this matter, the appellant, Duflaut, appealed against his sentence for importing and exporting marketable quantities of border controlled drugs. The case was heard by the High Court of Australia. The primary issue before the court was whether the sentencing judge erred by not allowing a discount for the utilitarian value of the appellant's plea of guilty. Additionally, the court had to consider whether the sentencing judge erred in the manner in which he dealt with the weight of the border controlled drug, as well as whether there was a justifiable sense of grievance due to the disparity between the sentence imposed on the appellant and that imposed on his co-offender.

The court found that the sentencing judge did not err in not allowing a discount for the utilitarian value of the plea of guilty. The appellant had not raised this issue before the sentencing judge, and therefore it was not open to him to raise it for the first time on appeal. The court also found that the sentencing judge did not err in the manner in which he dealt with the weight of the border controlled drug. The judge had considered all relevant factors and had not placed excessive weight on the amount of the drug. Finally, the court found that there was no justifiable sense of grievance due to the disparity between the sentence imposed on the appellant and that imposed on his co-offender. The judge had considered all relevant factors and had imposed a sentence that was proportionate to the appellant's offending.

The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld. The court found that the sentence was just and appropriate, taking into account all relevant factors. The appellant's arguments that the sentence was unjust and disproportionate were rejected. The court emphasised the importance of considering all relevant factors when imposing a sentence, and found that the sentencing judge had done so in this case.

Orders