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Abreu v The Queen [2020] NSWCCA 286

appeal against sentence — 1 count of possessing commercial quantity of border controlled drug offence contrary to ss 307.8(1) and 11.2A(1) of Commonwealth Criminal Code — 1 count of dealing with proceeds of crime contrary to ss 400.4(1) and 11.2A(1) of Commonwealth Criminal Code — offence related to 7.283 kg of pure cocaine — original sentence imposed 11 years’ and 9 months imprisonment with 7 year non-parole period — guilty plea — s 16A(2)(g) — Xiao error — offender sentenced 16 months prior to Xiao — sentencing judge’s failure to take into account utilitarian value of guilty plea necessitates Court exercising independent sentencing discretion afresh to determine if lesser sentence is warranted — offender should be afforded discount of 10% on sentence that would otherwise have been passed for late plea of guilty — nature and circumstances — s 16A(2)(a) — offence involved possession of large commercial quantity of cocaine 3.6 times greater than prescribed amount for commercial quantity with street value of around $5.5 million — offending was deliberate and planned — offender committed offence for profit — offender played a trusted role as an intermediary in overall enterprise beyond being mere courier of drugs — objective seriousness is at lower end of mid-range of possession of commercial quantity of border controlled drug — being motivated by prospect of financial gain is aggravating circumstance however degree of aggravation is largely notional — other offences — s 16A(2)(b) — offence was committed while offender was on bail but offence of possession of cocaine was small suggestive of possession for personal use only — mental condition — s 16A(2)(m) — offender has history of heavy substance abuse and gambling — offender has PTSD, persistent depressive disorder and polysubstance abuse disorders — difficult to conclude that mental health issues were integral to offending — COVID-19 — offender is American citizen — experience of isolation has been heightened by pandemic — offender’s aunt, uncle and cousin died in New York from COVID-19 — offender has suffered deterioration in mental condition — antecedents — s 16A(2)(m) — offender has history of offending in United States — offender has no criminal record in Australia — rehabilitation — s 16A(2)(n) — offender has continued to demonstrate strong commitment to rehabilitation — offender has remained abstinent from drug abuse — notwithstanding past history of drug offending — offender’s commendable efforts and pro-social supports likely available to them when returned to United States — parity — co-offender sentenced to 10 years’ imprisonment with 6 year non-parole period — co-offender pleaded guilty at first available opportunity — offender was treated somewhat more favourably than co-offender — leave to appeal granted — appeal allowed — sentence quashed — offender sentenced to 10 years’ and 7 months imprisonment with 6 year and 2 month non-parole period
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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