Gwardys v R [2019] NSWCCA 62

Court of Criminal Appeal Supreme Court New South Wales 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