Sintat v R - [2018] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sintat v R [2018] NSWCCA 165
Hearing dates: 25 July 2018
Date of orders: 25 July 2018
Decision date: 25 July 2018
Before: Hoeben CJ at CL at [1] [43] [45];
Price J at [2];
Davies J at [44]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIME – sentence appeal – offence of importing a marketable quantity of cocaine – failure by the judge to allow a discount for the utilitarian value of guilty plea – whether applicant should be re-sentenced – no different sentence than the sentence imposed by the judge should have been passed – appeal dismissed
Legislation Cited: Criminal Code Act 1995 (Cth), ss 11.2A, 307.2
Crimes Act 1914 (Cth), ss 16A, 20
Cases Cited: Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
R v Lopez-Alonso (1996) 86 A Crim R 270
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
Wong v the Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Xiao v R [2018] NSWCCA 4
Category: Principal judgment
Parties: Delphine Gaelle Ngo Bisseck Sintat (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr Smith (Applicant)
Ms Single (Respondent)
Solicitors:
Criminal Defence Lawyers (Applicant)
Solicitor for Commonwealth Public Prosecutions (Respondent)

File Number(s): 2016/238204
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

06 October 2017

Before:

Buscombe DCJ

File Number(s):

2016/238204

Judgment

HOEBEN CJ at CL: The Court is in a position to give judgment now and I will ask Price J to give the first judgment.
PRICE J: The applicant pleaded guilty in the Local Court to a charge of importing a marketable quantity of a border controlled drug, namely cocaine, contrary to ss 307.2(1) and 11.2A of the Criminal Code Act 1995 (Cth). She adhered to her plea in the District Court and was sentenced by Buscombe DCJ (“the judge”) on 6 October 2017, to 3 years imprisonment, commencing on 7 August 2016 and expiring on 6 August 2019. The judge ordered pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the applicant be released after serving two years upon entering into a recognizance in the amount of $100 on the condition that she be of good behaviour for a period of 2 years.
The applicant is eligible for release on 6 August 2018.
Cedric Duflaut, a co-offender, was also charged with importing a marketable quantity of cocaine contrary to s 307.2(1) and 11.2A of the Criminal Code. He was sentenced by the judge to imprisonment for 5 years 6 months, commencing on 6 August 2016 and expiring on 5 February 2022, with a non-parole period of 3 years 8 months. The non-parole period expires on 5 April 2020.

Factual background

A statement of facts was tendered by the Crown and the applicant, and…

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 Sintat v R

Details

AGLC: Sintat v R [2018] NSWCCA 165
Case: [2018] NSWCCA 165
Decision Date: 25 July 2018

CaseChat Overview and Summary

The case of Sintat v R was heard by the Court of Appeal, where the applicant appealed against his sentence for the importation of a marketable quantity of cocaine. Sintat was found guilty and sentenced by the trial judge to a term of imprisonment. Sintat's appeal focused on the trial judge's decision not to apply a discount for the utilitarian value of his guilty plea. The applicant argued that this was an error of law, which necessitated a re-sentencing of his term of imprisonment.

The court was required to determine whether the failure to apply a discount for a guilty plea constituted a legally significant error, and if so, whether this warranted a re-sentencing. The court examined the circumstances of the case, including the nature of the offence and the sentencing principles applicable in such cases. The central issue was whether the error in failing to apply the discount led to a sentence that was manifestly inadequate or excessive.

In addressing the matter, the Court of Appeal found that the error in not applying the discount for the guilty plea was indeed significant. However, upon reviewing the overall sentence imposed by the trial judge, the court concluded that it was unlikely that a different sentence would have been imposed if the discount had been correctly applied. The court emphasised that the principles of sentencing require a balanced approach, taking into account both the nature of the offence and the circumstances of the offender. Given the severity of the crime and the need for general deterrence, the court determined that the sentence was appropriate and did not warrant a re-sentencing.

Accordingly, the appeal was dismissed. The court upheld the original sentence imposed by the trial judge, finding that the error in not applying the discount for the guilty plea did not result in a sentence that was manifestly inadequate or excessive.

Orders