The offender was sentenced following pleas of guilty to 1 count of importing a commercial quantity of a border-controlled drug and 1 count of conspiring with others to deal with money in excess of $100,000 contrary to ss 11.5(1) and 400.4(1). Drug importation offence related to 34kg of pure cocaine. Additional offences taken into account pursuant to s 16BA. The offender appealed on the grounds that the sentencing judge failed to take into account the utilitarian value of the plea, the sentencing process miscarried as the sentencing judge asked for the views of the Crown as to the bounds of available sentences and erred by applying a principle that in cases of drug importation subjective factors must play a lesser role.
Guilty Plea: Sentencing judgment was handed down prior to decision in Xiao. Offender was not given a discount for utilitarian value of guilty plea. Simpson AJA doubted that misstatement of principle having no impact on the exercise of the sentencing discretion should result in the re-examination of that discretion by the Court. Absent the Crown’s concession that the Court was required to proceed to re-exercise the sentencing discretion, Simpson AJA would have been inclined to reject ground 1 of the proposed appeal.
Parity: Offender submitted that principles in Barbaro prevented the Crown from making any submission on parity which indicated that a particular sentence would infringe the principle of parity. The sentencing judge wanted guidance from the Crown as to the available range or appropriateness of a particular sentence. The Crown’s refusal to answer the question directly demonstrated the Crown’s awareness of the Barbaro principles and a determination not to breach them. The Crown’s negative answer as to whether a sentence was within range was part of the Crown’s submissions on parity. The Crown is both entitled and obliged to draw the sentencing judge’s attention to comparable cases.
Nature and Circumstances: Sentencing judge quoted Karan stating that subjective factors must play a lesser role. It was common ground that the word ‘must ‘was an error as in Karan it was actually said that such factors play a lesser role.
Extension of time granted. Leave to appeal granted. Appeal dismissed.
Guilty Plea: Sentencing judgment was handed down prior to decision in Xiao. Offender was not given a discount for utilitarian value of guilty plea. Simpson AJA doubted that misstatement of principle having no impact on the exercise of the sentencing discretion should result in the re-examination of that discretion by the Court. Absent the Crown’s concession that the Court was required to proceed to re-exercise the sentencing discretion, Simpson AJA would have been inclined to reject ground 1 of the proposed appeal.
Parity: Offender submitted that principles in Barbaro prevented the Crown from making any submission on parity which indicated that a particular sentence would infringe the principle of parity. The sentencing judge wanted guidance from the Crown as to the available range or appropriateness of a particular sentence. The Crown’s refusal to answer the question directly demonstrated the Crown’s awareness of the Barbaro principles and a determination not to breach them. The Crown’s negative answer as to whether a sentence was within range was part of the Crown’s submissions on parity. The Crown is both entitled and obliged to draw the sentencing judge’s attention to comparable cases.
Nature and Circumstances: Sentencing judge quoted Karan stating that subjective factors must play a lesser role. It was common ground that the word ‘must ‘was an error as in Karan it was actually said that such factors play a lesser role.
Extension of time granted. Leave to appeal granted. Appeal dismissed.
