Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Musa v R [2018] NSWCCA 192 Hearing dates: 8 August 2018 Date of orders: 03 September 2018 Decision date: 03 September 2018 Before: Bathurst CJ at [1] Hoeben CJ at CL at [2] Fagan J at [3] Decision: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The sentence imposed in the District Court on 5 September 2017 is quashed. (4) In lieu thereof the applicant is sentenced to imprisonment for 5 years and 2 months commencing on 6 January 2016 and expiring on 5 March 2021 with a non-parole period of 3 years and 3 months commencing on 6 January 2016 and expiring on 5 April 2019. Catchwords: CRIME – appeal against sentence – attempting to possess marketable quantity of controlled drug contrary to Criminal Code (Cth), ss 11.1(1) and 307.6(1) – guilty plea entered at earliest opportunity – 20% discount in sentence for early plea – head sentence of 5 years 6 months imprisonment with non-parole period of 3 years 6 months – whether error in considering appropriate discount for plea of guilty – whether utilitarian value of guilty plea should have been considered – appeal allowed and offender resentenced Legislation Cited: Criminal Code (Cth) Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 Tyler v R [2007] NSWCCA 247 Xiao v R [2018] NSWCCA 4 Category: Principal judgment Parties: Yilbay Musa (applicant) Regina (respondent) Representation: Counsel: Mr David Barrow (applicant) Mr Lincoln Crowley (respondent) Solicitors: T & S Law Firm (applicant) Commonwealth Director of Public Prosecutions (respondent) File Number(s): 2016/005197 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 5 September 2017 Before: Toner SC DCJ File Number(s): 2016/005197 Judgment 1. BATHURST CJ: I agree with the orders proposed by Justice Fagan and with his Honour's reasons. 2. HOEBEN CJ at CL: I agree with Fagan J and the orders which he proposes. 3. FAGAN J: The applicant seeks leave to appeal against a sentence passed in the District Court on 5 September 2017 for an offence of attempting to possess a marketable quantity of a border controlled drug which had been imported, contrary to ss 11.1(1) and 307.6(1) of the Criminal Code (Cth). The drug was 890.2 g of methamphetamine at 79.7% purity. It equated to a pure weight of 709.4 g. 4. The offence was committed on 6 January 2016. The applicant was arrested that day and was remanded in custody until sentenced. He pleaded guilty at the earliest opportunity, in the Local Court. The maximum penalty for the offence is 25 years imprisonment. His Honour Judge Toner SC imposed a term of 5 years and 6 months commencing on the day of arrest. A non-parole period of 3 years and 6 months was fixed. 5. The sentence took into account a 20% discount for the applicant's early plea. The sole ground of appeal is: His Honour erred when considering the appropriate discount for the plea of guilty. Facts 1. At the time of the offence the applicant was 49 years old. He resided at Unit 10, 97-99 Targo Road, Giraween, with his son Johnny, aged 23. Unit 10 is a small single story dwelling in a cluster of similar buildings at this address. Between 30 November 2015 and 20 December 2015 the applicant remitted $19,815.23 to the USA in four separate transfers, each to a different named individual at four separate addresses in Fresno and Clovis, being two neighbouring localities in California. 2. On or shortly before 3 January 2016 the DHL courier company imported into Australia a consignment from Fresno consisting of two 30 cm candles in glass containers, packed in a cardboard box. The consignee was Jonathan Mason at Unit 3 of the residential complex in which the applicant and his son occupied Unit 10. Methamphetamine weighing 890.2 g was secreted within the candles. Police found the drug while the consignment was in transit and substituted an inert substance. 3. On 6 January 2016 a member of the Australian Federal Police posing as a DHL driver delivered the consignment to Unit 3, 97-99 Targo Road. A short time later the applicant collected it from that unit. After he had returned to Unit 10 a search warrant was executed there. The cardboard box was located. The candles had been removed from their glass containers and the candles themselves had been broken up. A Nokia mobile phone located in Unit 10 at this time was found to contain a number of text messages consistent with communications concerning the importation and receipt of the drug. The issue with respect to discounting for the plea of guilty 1. On the subject of discounting the applicant's sentence for his plea of guilty the learned judge said: Under Commonwealth law the utility of guilty pleas is described as being of assistance to the due administration of justice. That being, in part at least, that it obviates the necessity for there to be a trial, and clearly in a case like this it would have been a relatively complex and cumbersome beast and require the Commonwealth to devote significant resources to his prosecution should it have gone to trial so there is that feature of it. Against that, one weighs the relative strength of the Crown case as a countervailing factor or potential countervailing factor to that consideration. It seems to me that in this case for reasons which become apparent shortly, that the Crown had a strong case against this offender and it is hard to see what his defence might have been. Although, significantly it depends upon inferences to participation based on his presence at particular addresses but nonetheless it was a strong Crown case. … To express it mathematically it seems to me a proper allowance in this case in the circumstances is to allow a discount of 20% of the sentence which otherwise would be imposed to accommodate those factors that I have just identified. 1. The reasoning in the above quoted passage is consistent with the understanding of Commonwealth sentencing law current at the time the sentence was passed. Namely, on the basis of the judgment of the plurality in Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, a plea of guilty could only be recognised "by reference to the willingness of the offender to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing": see Tyler v R [2007] NSWCCA 247 at [110]. On that principle, a plea of guilty in the face of a strong Crown case could be regarded as merely a recognition by the offender of the inevitable rather than an indication of his willingness to facilitate the course of justice. Explicitly, his Honour's discount of 20% was somewhat less than he would have allowed for the full utilitarian benefit of the plea. His Honour moderated the discount upon the consideration that in the face of a strong Crown case the plea could not be credited as a manifestation of willingness to facilitate justice. 2. In Xiao v R [2018] NSWCCA 4 this Court held: [278] In these circumstances it is our opinion that in sentencing proceedings governed by s 16A [of the Crimes Act 1914 (Cth)], a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler v The Queen and the cases which followed it provide to the contrary, they should not be followed. 1. In light of this decision it is apparent that his Honour erred (albeit without fault on his part) in applying the reasoning extracted above from the Remarks on Sentence to arrive at a discount of 20%. 2. His Honour's starting point before applying the discount must have been a head sentence of 6 years and 10 months with a non-parole period of 4 years and 4 months. The application of a discount of 25% for the full utilitarian value of the plea would have resulted in a sentence of 5 years and 2 months with a non-parole period of 3 years and 3 months. Resentence 1. The ground of appeal must be upheld. For the reasons which follow we consider that a sentence less severe than that which his Honour imposed was warranted in law and should have been passed. The objective facts of the offending have already been described. The Crown conceded that another person, known only as "George", had been involved and was a more significant moving party than the applicant. His Honour characterised the applicant's role as that of "facilitator", sending funds to California and being the receiver of the imported drugs upon delivery, but occupying a position "significantly below that of a principal in the enterprise". 2. The applicant's family background is Turkish. He was born on Cyprus in 1967. He immigrated to Australia at the age of eight years. The learned sentencing judge had before him reports of a psychologist and a social worker plus the applicant's criminal history. From the age of 18 years there were recorded against him numerous convictions for possession and use of prohibited drugs and for stealing. He had not been convicted of any offence in the eleven and a half years from mid-2004 until his arrest in January 2016. 3. The applicant had been a long-term user of cannabis and heroin. He was on a methadone program in 2016. The psychologist described his intellectual functioning as within the borderline range, approximately at the 5th percentile. She described "a significant and chronic history of substance use for over 30 years" and numerous health problems including Hepatitis C and anxiety. He had had no stable employment for 30 years. At the time of sentencing he was in receipt of a disability support pension. 4. An affidavit of the applicant sworn 31 July 2018 is taken into account on resentencing. It paints a favourable picture of the applicant having achieved a relatively low security classification in custody, engaging in educational courses in the prison system and undertaking employment in metal trades, gardening, cleaning and maintenance. The applicant deposes that he has "not been found to be in use or in possession of any illicit drugs or produced any positive urine test results" during his incarceration. He says that he has "achieved a healthier lifestyle in prison" and describes an exercise routine. He has maintained positive contact, by telephone and through visits, with his son Johnny. All of this tends to confirm the learned sentencing judge's assessment that he "probably represents reasonable prospects of rehabilitation". 5. Taking together the whole of the objective circumstances of the offending and the subjective attributes of the applicant I consider that an appropriate penalty, before discounting for the plea of guilty, would be the starting point sentence implicit in his Honour's decision, namely, 6 years and 10 months with a non-parole period of 4 years and 4 months. Counsel for the applicant expressly accepted that it is open to this Court to find that an appropriate starting point. He acknowledged also that adoption of that penalty, pre-discount, would be consistent with the position taken by counsel who appeared for the applicant in the District Court. Counsel for the Crown on the hearing of the application for leave to appeal did not argue that this starting point would be inadequate. Orders 1. There should be applied a discount of 25% for the utilitarian value of the applicant's plea of guilty, entered at the first opportunity. I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The sentence imposed in the District Court on 5 September 2017 is quashed. 4. In lieu thereof the applicant is sentenced to imprisonment for 5 years and 2 months commencing on 6 January 2016 and expiring on 5 March 2021 with a non-parole period of 3 years and 3 months commencing on 6 January 2016 and expiring on 5 April 2019. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2018