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Choy v R [2023] NSWCCA 23

The offender was sentenced following a plea of guilty to 1 count of importing a commercial quantity of a border-controlled drug contrary to s 307.11 of the Commonwealth Criminal Code. Further offences were taken into account pursuant to s 16BA of the Crimes Act 1914. Offending related to 73.8 kilograms of pure methamphetamine. Original sentenced imposed a sentence of 21 years of imprisonment with a non-parole period of 15 years. Offender appealed on the grounds that in determining the appropriate discount to reflect the value of the offender’s plea of guilty the sentencing judge did not have regard to the utilitarian value of the offender’s plea of guilty, and that there is a disparity in the sentences imposed upon the offender and their co-offender such as to give rise to justifiable sense of grievance by the applicant.

Guilty Plea: The sentencing judge effectively eschewed any regard to the utilitarian value of offender’s plea of guilty. The sentencing judge not expressly taking into account the offender’s entitlement to a discount for the utilitarian value of their guilty plea amounts to an error comprising a failure to take into account a material consideration when determining sentence.

Parity: Error was (properly) conceded regarding parity, limited to disparity in the ratios between offender’s and Heng’s non-parole period to head sentence in circumstances where they were sentenced separately and there were no subjective features which could explain the 5% difference in the propositions of the non-parole periods imposed. It was conceded that this has led to offender having a justifiable sense of grievance. There is nowhere any explanation as to why the sentencing judge considered a non-parole period reflecting 66.3% of the head sentence was appropriate for the co-offender, but that a non-parole period reflecting 71% of the head sentence was appropriate for the offender.

Mental Condition: Offender asked the Court on resentence to consider the De La Rosa aspects related to their mental health. There is not anything in the material that supports a reduction in moral culpability for offending given offender’s diagnosed mental illness of schizophrenia. The symptoms of it have on occasion since incarceration caused some difficulty for offender, but it was no more or less than what would be expected and it certainly has not been demonstrated to be so serious that some kind of separate reduction in sentence should be recognised and applied.

Leave to extend the time for appeal granted. Leave to appeal granted. Appeal allowed. Offender resentenced to 21 years imprisonment with a non-parole period of 14 years.
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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