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Gwardys v R

Gwardys v R

Case [2019] NSWCCA 62 29 March 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Gwardys v R [2019] NSWCCA 62
Hearing dates: 11 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Before: Payne JA at [1]
Bellew J at [3]
Campbell J at [54]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Importing a quantity of cocaine in excess of the marketable quantity – Where sentencing judge failed to take into account the utilitarian value of the applicant’s plea of guilty – Error established
CRIMINAL LAW – Offences – Sentence – Appeal – Applicant re-sentenced in the fresh exercise of the sentencing discretion –– Where applicant entitled to a discount of 25% to reflect the utilitarian value of the early plea of guilty – Serious offending – Where applicant was responsible for the physical importation of a quantity of cocaine substantially in excess of the marketable quantity – Applicant remorseful with good prospects of rehabilitation – Where sentence of 6 years imprisonment with a non-parole period of 4 years imprisonment was imposed by the sentencing judge – No lesser sentence warranted in the fresh exercise of the sentencing discretion
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Criminal Code Regulations 2002 (Cth)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited: Baladjam v R [2018] NSWCCA 304
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Okafor v R [2007] NSWCCA 147
Onuorah v R [2009] NSWCCA 238
R v Barrientos [1999] NSWCCA 1
R v Morgan (1993) 70 A Crim R 368
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Paliwala [2005] NSWCCA 221
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Wong v R; Leung v R [2001] HCA 64; (2001) 207 CLR 584
Xiao v R [2018] NSWCCA 4
Texts Cited: Major Drug Offences – Current Sentencing Practices: Victorian Sentencing Advisory Council (2015)
Category: Principal judgment
Parties: Patryk Krzysztof Gwardys - Applicant
Regina - Respondent
Representation:
Counsel:
A G Melick QC and E James – Applicant
R Ranken – Respondent
Solicitors:
Dib and Associates - Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2016/00368696
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 October 2017

Before:

Her Honour Judge Wass SC

Judgment

PAYNE JA: I have read the decision of Bellew J in draft. I agree with his Honour that error has been established in the failure to take into account the utilitarian discount for the early plea of guilty. This is unsurprising as the sentencing took place before Xiao v…

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 Gwardys v R

Details

AGLC: Gwardys v R [2019] NSWCCA 62
Case: [2019] NSWCCA 62
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the case of Gwardys v R, the appellant, Gwardys, appealed against his sentence for importing a quantity of cocaine in excess of the marketable quantity. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the sentencing judge had correctly taken into account the utilitarian value of the appellant’s early plea of guilty. Additionally, the court had to determine if the sentence imposed was appropriate given the gravity of the offence and the appellant’s prospects for rehabilitation.

The court found that the sentencing judge had indeed erred by not adequately considering the utilitarian value of the appellant’s early plea of guilty. This error necessitated a fresh exercise of the sentencing discretion. The court held that the appellant was entitled to a discount of 25% for his early plea, which reflected the benefits to the criminal justice system of such a plea. Despite the serious nature of the offence, the court noted that the appellant had shown remorse and had good prospects for rehabilitation. Balancing these factors, the court concluded that the sentence of six years imprisonment with a non-parole period of four years was appropriate.

In light of the above, the court exercised its discretion to re-sentence the appellant. It confirmed that the original sentence was appropriate and did not warrant alteration. The court emphasised that the gravity of the offence, given the substantial quantity of cocaine involved, and the appellant’s role in its importation, justified the sentence imposed. The court's decision reflected a careful consideration of all relevant factors, including the appellant's early plea and prospects for rehabilitation.

Orders