Gershuny v R; Ruiz v R [2020] NSWCCA 14

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gershuny v R; Ruiz v R [2020] NSWCCA 14 Hearing dates: 7 February 2020 Date of orders: 14 February 2020 Decision date: 14 February 2020 Before: McCallum JA at [1]; Adamson J at [2]; Beech-Jones J at [3] Decision: In the matter of Richard Gershuny v R:

(1) Leave to appeal against sentence granted. (2) Appeal upheld. (3) The sentence imposed by M L Williams SC DCJ on 27 January 2017 be set aside. (4) The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non‑parole period of 4 years 6 months, expiring on 5 May 2020.

In the matter of Cesar Ruiz v R:

(1) Leave to appeal against sentence granted. (2) Appeal upheld. (3) The sentence imposed by M L Williams SC DCJ on 9 December 2016 be set aside. (4) The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non‑parole period of 4 years 6 months, expiring on 5 May 2020. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – application for leave to appeal – attempt to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1) – utilitarian value of plea of guilty for Commonwealth offence – Xiao error established – whether applicant to be resentenced – consideration of parity principle to sentence imposed by differently constituted Court of Criminal Appeal – applicant resentenced afresh – leave granted – appeal allowed Legislation Cited: Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code 1995 (Cth) Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Diaz v R [2019] NSWCCA 216 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Greentree v R [2018] NSWCCA 227 House v The King (1936) 55 CLR 409 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 Xiao v R (2018) 96 NSWLR 1 Category: Principal judgment Parties: Richard Gershuny (Applicant in 2015/327239) Cesar Ruiz (Applicant in 2015/327241) Regina (Respondent) Representation: Counsel: M Avenell (Applicants) K Ginges (Respondent)