Abreu v The Queen [2020] NSWCCA 286

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abreu v The Queen [2020] NSWCCA 286 Hearing dates: 7 September 2020 Date of orders: 6 November 2020 Decision date: 06 November 2020 Before: McCallum JA at [1]; Campbell J at [2]; N Adams J at [55] Decision: (1) Under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) extend the time for filing the application for leave to appeal, nunc pro tunc to 16 June 2020; (2) Grant leave to appeal; (3) Appeal allowed; (4) Quash the sentences passed in the District Court of New South Wales on 3 November 2016 and instead sentence the applicant as follows: (a) For the offence contrary to s 400.4 of the Criminal Code (Cth) of dealing with the proceeds of crime impose a term of imprisonment of 1 year and 6 months duration commencing on 4 October 2014 and expiring on 3 April 2016; and (b) For the offence contrary to s 307.8 of the Criminal Code (Cth) of possessing a commercial quantity of a border controlled drug and taking into account the matter on the schedule under s 16BA of the Crimes Act 1914 (Cth) impose a term of imprisonment of 10 years and 2 months duration commencing on 4 March 2015 and expiring on 3 May 2025; (c) Under s 19AB of the Crimes Act 1914 (Cth) fix a non-parole period of 6 years and 2 months commencing on 4 October 2014 and expiring on 3 December 2020; (d) The applicant is first eligible for release on parole after the expiration of the non-parole period on 3 December 2020; (e) The total effective sentence is one of 10 years and 7 months. (5) Under s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(c) of that Act the heading to and paragraphs [44] – [45] of the reasons of Campbell J are suppressed throughout the Commonwealth of Australia for a period of 5 years after the date of publication of this judgment. Catchwords: CRIME – appeal – appeal against sentence –extension of time in which to appeal CRIME – appeal – appeal against sentence – where sentencing Judge excluded utilitarian value of applicant's plea of guilty – where Xiao error established – where lesser sentence warranted – where applicant re-sentenced Legislation Cited: Crimes Act 1914 (Cth) ss 16A, 19AB Criminal Appeal Act 1912 (NSW) ss 6(3), 10(1)(b) Criminal Code (Cth) ss 11.2A(1), 307.10(1), 307.8(1), 400.4(1) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Bae v R [2020] NSWCCA 35 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Diaz v R [2019] NSWCCA 216 House v The King (1936) 55 CLR 499; [1936] HCA 40 Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 Jinde Huang aka Wei Liu v The Queen (2018) 272 A Crim R 266; [2018] NSWCCA 70 Kaurasi v R (Cth) [2020] NSWCCA 253 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Moodie v R [2020] NSWCCA 160 Naizmand v R [2018] NSWCCA 25 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Nguyen, R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 RO v R [2019] NSWCCA 183 Turnbull v R [2019] NSWCCA 97 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Haydro Luis Abreu (Applicant) The Queen (Respondent) Representation: Counsel: M. Avenell (Applicant) L. Fernandez (Respondent)