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DGF v The Queen [2021] WASCA 4

The offender was sentenced following a plea of guilty of 1 count of importing a commercial quantity of a border-controlled drug contrary to s 307.1(1) Commonwealth Criminal Code. The original sentence imposed 6 years and 3 months’ imprisonment with a 4-year non-parole period. The offender sought to appeal against the sentence on three grounds. Ground 1 alleged that the sentencing judge erred in considering the discount for the offender’s guilty plea and past cooperation. Ground 2 alleged that the head sentence was manifestly excessive. Ground 3 alleged that the accumulation of grounds 1 and 2 let to a miscarriage of justice.  

Guilty Plea: Offender received 40% discount for plea of guilty and past co-operation. Offender’s plea was valuable and deserved a substantial discount. It was a plea given at the first reasonable opportunity consistent with contrition and remorse and a willingness to facilitate the course of justice. The prosecution case was strong. There was no entitlement to a 25% discount for the plea of guilty. The sentencing judge was not bound to reduce the sentence he would otherwise have imposed by 25%.  

Co-Operation: There is no standard percentage discount for past co-operation. The past co-operation provided by the offender was also valuable and deserved a substantial discount. There had been and would continue to be some personal risk to the offender as a result of their co-operation. So far as the co-operation had let to practical results, there was a real risk of identification and possible retribution. Based on the offender’s co-operation appeal judge inferred that offender would probably endure more onerous conditions than the general prison population while imprisoned. Beyond the most general of observations, it was not and is not possible to assess the specific degree to which the offender is likely to be subjected to more onerous conditions. There is danger in focussing too much on the percentage discount articulated by the sentencing judge. The instinctive synthesis informing an appropriate sentencing disposition is not achieved by algorithm or mathematics. The reduction of 4 years and 3 months was a substantial discount. It was open to the sentencing judge to view the reduction as an appropriate and proper recognition of the plea and co-operation.  

Manifest Excess: The sentencing judge referred to all of the specific matters relied on by the offender. It cannot be suggested that the sentencing judge overlooked any of these relevant sentencing considerations.

Leave to appeal granted for grounds 1 and 2. Leave to appeal on ground 3 dismissed. Appeal was dismissed.  
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