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Diaz v The Queen [2019] NSWCCA 216

appeal against sentence — attempting to import a commercial quantity of a border controlled drug offence contrary to s 11.1(1) and 307.1(1) of Commonwealth Criminal Code — original sentence imposed 9 years’ and 6 months imprisonment with a 4 year and 10 month non-parole period — offence relates to 3.5kg of pure cocaine — guilty plea — s 16A(2)(g) — failure to provide utilitarian discount for plea of guilty per Xiao v The Queen — sentencing judge did give a discount of 25% for the “facilitation of justice” to the offender — given for the wrong reason, arguable as it happens the right discount derived from entry of early plea — if discount had been provided for utilitarian value of plea of guilty, discount would in all likelihood been 25% — Xiao error cannot be said to fit comfortably within errors that do not require consideration of resentence — resentence must be considered — mental condition — 16A(2)(m) — sentencing judge accepted offender receiving medication for stomach ulcers and anxiety and aspirin for heart problems, but in absence of sworn evidence from offender that was able to be tested in cross-examination, sentencing judge not prepared to take into account opinion in psychological report of criminal conduct contributed by any mental condition — hardship to the offender — offender spoke of fearing for safety in prison due to refusal to assist other prisoners smugglings items into maximum security prison — absence of evidence of hardship arising from it — sentencing judge found not mitigating — reflection not only of fact that it is sometimes difficult to demonstrate protection is indeed more onerous for particular prisoner than main population, but also the fact that it is not always possible to predict whether a prisoner will remain on protection into the future after sentence has been imposed — resentenced to 9 years’ imprisonment with 4 year and 6 month non-parole period
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