Van Zwam v R [2017] NSWCCA 127

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Van Zwam v R [2017] NSWCCA 127 Hearing dates: 5 May 2017 Date of orders: 09 June 2017 Decision date: 09 June 2017 Before: Macfarlan JA at [1]; Adamson J at [8]; Campbell J at [106] Decision: (1) To the extent required, extend the time for the filing of the notice of application for leave to appeal against conviction.

(2) Grant leave to appeal against conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

(3) Dismiss the appeal against conviction.

(4) Grant leave to appeal against sentence.

(5) Allow the appeal against sentence, quash the sentence passed in the District Court, and re-sentence the applicant as follows:

(i) The offender is sentenced to imprisonment for a period of 8 years and 6 months commencing on 22 March 2013 and expiring on 21 September 2021;

(ii) Fix a non-parole period of 4 years and 6 months commencing on 22 March 2013 and expiring on 21 September 2017. Catchwords: CRIMINAL LAW – appeal against conviction following plea of guilty – importing commercial quantity of border controlled drug – fault element required under section 307.1 Criminal Code Act 1995 (Cth) – recklessness – where applicant admitted his awareness of a substantial risk that substance in suitcase was a border controlled drug – where there was no suggestion that applicant had not been properly advised as to entering plea of guilty or that plea of guilty was unsound – HELD – appeal dismissed –– no miscarriage of justice established to permit withdrawal of plea of guilty and order for retrial