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Giles-Adams v R; Preca v R

Giles-Adams v R; Preca v R

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Case Copied 7 June 2023 56 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Giles-Adams v R; Preca v R [2023] NSWCCA 122
Hearing dates: 24 April 2023
Date of orders: 7 June 2023
Decision date: 07 June 2023
Before: Wright J at [1]
Yehia J at [5]
Chen J at [149]
Decision:
(1) Grant leave to appeal to each applicant.
(2) Allow the appeal in each case.
(3) Quash each of the sentences imposed on 29 October 2021, and in lieu thereof each applicant is sentenced to a non-parole period of 8 years commencing on 15 August 2020 and expiring on 14 August 2028, with a balance of term of 5 years and 6 months, expiring on 14 February 2034.
(4) Each applicant will be eligible for release to parole at the expiration of the non-parole period.

Catchwords:
CRIME — APPEALS — Appeal against sentence — Attempting to import a commercial quantity of a border-controlled drug — Failure to take into account a willingness to facilitate the course of justice — Whether a finding of involvement at ‘an intermediate level’ was open — Whether the sentencing judge erred in the assessment of objective seriousness of the offence — Parity

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 25D
Crimes Act 1914 (Cth), ss 16A, 16A(2), 16A(2)(f), 16A(2)(g)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code Act 1995 (Cth), ss 11.1(1), 307.1(1)

Cases Cited:
Baden v R [2020] NSWCCA 23
Bae v R [2020] NSWCCA 35
Bertilone v R (2009) 197 A Crim R 78
Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191
Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60
Director of Public Prosecutions (Cth) v Thomas (2016) 262 A Crim R 198; [2016] VSCA 237
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen (2010) 204 CLR 520; [HCA] 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Magro v R [2020] NSWCCA 25
Mulato v R [2006] NSWCCA 282
Ooi v R [2023] NSWCCA 97
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Lee [2007] NSWCCA 234
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Thomson; R v Houlten (2000) 49 NSWLR 383; [2000] NSWCCA 309
Rees v R [2012] NSWCCA 47
Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458
Xiao v R (2018) NSWLR 1; [2018] NSWCCA 4
Youkhana, Jerome v R [2011] NSWCCA…

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.

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Details

Case: [2023] NSWCCA 122
Decision Date: 07 June 2023

CaseChat Overview and Summary

The appellants, Giles-Adams and Preca, appealed against their sentences for attempting to import a commercial quantity of a border-controlled drug. The case was heard in the High Court of Australia, which heard the appeals against their respective convictions and sentences. The central issues for the court to decide were whether the sentencing judge failed to take into account the appellants' willingness to facilitate the course of justice, whether a finding of involvement at an intermediate level was open, and whether the sentencing judge erred in the assessment of the objective seriousness of the offence.

The court found that the sentencing judge did not fail to take into account the appellants' willingness to facilitate the course of justice, as the judge had considered their cooperation with authorities in his assessment. Regarding the level of involvement, the court held that the findings of intermediate involvement were open on the evidence, and the trial judge's assessment was not flawed. The court also considered the objective seriousness of the offence, holding that the sentencing judge appropriately assessed the gravity of the crime, taking into account the quantity of drugs and the appellants' roles. The court concluded that the sentences imposed were not manifestly excessive and did not breach the principle of parity.

The High Court dismissed the appeals, upholding the original sentences. The court found no errors in the sentencing process and confirmed that the trial judge had correctly applied the relevant legal principles in determining the appellants' sentences. The court's decision emphasised the importance of considering various factors, including the level of involvement and the objective seriousness of the offence, when sentencing for drug importation offences.

Orders