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Gershuny v The Queen; Ruiz v The Queen [2020] NSWCCA 14

appeal against sentence — attempting to import a commercial quantity of a border controlled drug offence contrary to ss 11.1 and 307.1 of the Commonwealth Criminal Code — two co-offenders — offence relates to 3.5 kilos of pure cocaine — original sentence imposed 9 years’ and 6 months imprisonment with a 4 year and 10 month non-parole period on both offenders — guilty plea — s 16A(2)(g) — Xiao error — in light of Xiao the approach of sentencing judge can either be characterised as a failure to take into account some material consideration or acting upon a “wrong principle”, namely that pleas for Commonwealth offences are not to be assessed on the basis of their utilitarian value — re-sentence — based on new material which does no more that update material that was before the sentencing judge and given amount of cocaine involved, appeal judge reluctant to impose lower sentence on each offender than was imposed at first instance, which was reasonably lenient — parity — remains issue of parity with sentence imposed by Court on third co-offender previously sentenced — no difference in objective and subjective case of all 3 offenders to warrant any differential treatment — given all 3 are foreign nationals with no local family or community ties, it can be expected that imprisonment is equally burdensome on all of them — if Court were not to intervene and impose same sentence on the two offenders as the third co-offender  then they would be left with a justifiable sense of grievance — appeal upheld — resentenced to 9 years’ imprisonment with a 4 year 6 month non-parole period for both offenders
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