Macfarlan JA at [1]; Walton J at [2]; Rothman J at [147]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal with respect to Grounds 2, 3 and 5.
(3) Quash the sentence imposed on the applicant in the District Court on 18 September 2020 and in lieu therefore, sentence the applicant to terms of imprisonment as follows:
(a) For the Offence in contravention of s 400.9(1) of the Criminal Code, a term of imprisonment of 7 months commencing 18 May 2015.
(b) For the Offence in contravention of s 302.3(1) of the Criminal Code, a term of imprisonment of 7 years 6 months commencing 18 July 2015.
(c) For the Offence in contravention of s 400.3(2), a term of imprisonment of 8 years commencing 18 February 2016.
(d) The single non-parole period for the Commonwealth Offences in orders (a), (b) and (c) of 5 years 10 months commencing 18 May 2015 and expiring 17 March 2021.
(e) An aggregate sentence of 12 years imprisonment to commence on 18 February 2018 and expiring on 17 February 2030 for the First State Supply Offence and the Second State Supply offence. The aggregate non-parole period for those offences is 7 years 6 months imprisonment to commence on 18 February 2018 and expiring on 17 August 2025.
(f) The indicative sentence for the First State Supply Offence is 5 years with a non-parole period of 3 years 3 months. The indicative sentence for the Second State Supply Offence is 10 years with a non-parole period of 6 years 6 months.
(g) An overall sentence to be imposed is 14 years and 9 months with a non-parole period of 10 years and 3 months commencing on 18 May 2015. The earliest release date will be 17 August 2025. The sentence will expire on 17 February 2030.
Catchwords:
CRIMINAL LAW – application for leave to appeal against sentence – whether the sentencing judge erred in identifying the elements of the offence – Criminal Code Act 1995 (Cth) s 400.3 – whether sentencing judge erred in making a finding of guilt under s 400.3(2)(b)(i) – De Simoni principle - whether the sentencing judge erred in assessing the discount to be afforded for the value of guilty plea – whether the sentence for the Money Laundering Offence was manifestly excessive – whether error in overall effective non-parole period – parity – leave to appeal granted - appeal allowed – re-sentence
[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.
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AGLC
Garcia v The The King [2022] NSWCCA 172
Case
[2022] NSWCCA 172
Decision Date
CaseChat Overview and Summary
The case involved the appellant, Garcia, who was convicted of a money laundering offence under the Criminal Code Act 1995 (Cth) s 400.3. Garcia sought leave to appeal against the sentence imposed by the sentencing judge. The central issue was whether the sentencing judge had erred in several aspects of the sentencing process, including the identification of the elements of the offence, the assessment of the discount for a guilty plea, and the determination of whether the sentence was manifestly excessive. Additionally, Garcia argued that the effective non-parole period was not in parity with similar cases, and thus, should be reconsidered.
The court examined the arguments raised by Garcia, focusing on the application of the De Simoni principle, which relates to the assessment of the discount for a guilty plea. The court reviewed the sentencing judge's approach to the elements of the offence under s 400.3(2)(b)(i) and whether the judge erred in making a finding of guilt. Furthermore, the court scrutinised the overall effectiveness of the non-parole period and whether the sentence imposed was manifestly excessive. The court considered whether the sentencing judge had appropriately exercised discretion in imposing the sentence and whether any errors in the sentencing process warranted a re-sentencing.
Upon review, the court found that the sentencing judge had indeed erred in several aspects. The court identified errors in the identification of the elements of the offence, the assessment of the discount for the guilty plea, and the calculation of the effective non-parole period. The court concluded that the sentence was manifestly excessive and not in line with similar cases. Consequently, the court granted leave to appeal and allowed the appeal, ordering a re-sentencing. This decision ensured that the errors identified during the appeal process were rectified, and the sentence was reconsidered in light of the court's findings.