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Garcia v The King [2022] NSWCCA 172

The offender was sentenced following pleas of guilty to 1 count of dealing with money recklessly as to the risk that the money or property will become an instrument of crime contrary to s 400.3(2) of the Commonwealth Criminal Code, 1 count of trafficking in a marketable quantity of a border-controlled drugs contrary to s 302.3(1) of the Commonwealth Criminal Code, and 1 count of failing to comply with a condition made under s 20(1)(b) of the Crimes Act 1914 contrary to s 400.9(1) of the Commonwealth Criminal Code. An additional drug offence was taken into account under s 16BA. The offender was also sentenced for state drug offences. Original sentence imposed 15 years and 6 months imprisonment with a non-parole period of 11 years. Offender appealed on the grounds that the sentencing judge erred in identifying the elements of the proceeds offence to which offender had pleaded guilty, in proceeding on the basis that offender was reckless to the source of the money, in assessing the plea discount in relation to the proceeds offence, and in imposing a manifestly excessive indicative sentence for the proceeds offence.

Nature and Circumstance: Whilst the sentencing judge made an error at the outset of their judgment, that he was sentencing offender on the basis that they were reckless as to the fact that the money would become an instrument of crime, as opposed to the basis on which they pleaded guilty to the offence, the sentencing judge did sentence offender for being reckless as to a circumstance that involved the possibility of a future event occurring. Offender was not being sentenced on the basis of a future event that had not yet occurred and might never occur. Aspects of the reasons for sentence indicate that the mischaracterisation of the offence did not involve the sentencing judge sentencing offender for an offence of greater criminality than the offence to which offender had pleaded. The first ground of error did not affect the sentencing discretion and no consideration of re-sentencing is required. The sentencing judge was at pains to proceed on the basis that offender did not have the state of mind amounting to a belief that the money was proceeds of crime yet then assessed the penalty on the basis that it was, in fact, proceeds of crime. Ground 2 of the appeal should be allowed and the offender resentenced.

Guilty Plea: The sentencing judge erred in the finding that offender was charged with the proceeds offence in March 2018, when, in fact, offender had not been charged until 17 July 2020. The discount for the utilitarian value of the pleas should have regard principally to the timing of those which occurred after the first trial date had been vacated and shortly before the second trial date. The misstatement by the sentencing judge of the date on which the proceeds charge was laid constituted an error which affected the sentencing discretion. In these circumstances, the discount for the utilitarian value of offender’s pleas of guilty is at 12.5%. The subjective circumstances may be reflected in a further allowance for their willingness to facilitate the course of justice. This aspect lies as a subjective factor to be taken into account on sentence which ought not be quantified.

Non-Parole Period: There is plainly a misstatement by the sentencing judge of the overall additional term. There is nothing in the sentencing judge’s remarks that would indicate an intention to substantially increase the ratio with respect to the overall total term as compared with the aggregate or overall terms of the State and Commonwealth Offences respectively. That comfortably leads to the conclusion that the sentencing judge did not intend to set an overall non-parole period which was approximately 71% of the overall term of imprisonment.

Leave to appeal granted. Appeal allowed. Original sentence quashed and offender resentenced to 14 years and 9 months imprisonment with a non-parole period of 10 years and 3 months.
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