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Kaursai v The Queen (Cth) [2020] NSWCCA 253

appeal against sentence — importing commercial quantity of border controlled drug contrary to s 307.1(1) Commonwealth Criminal Code — original sentence imposed 12 years’ imprisonment with 9 year non-parole period — offence relates to 42.941 kg of pure cocaine — guilty plea — s 16A(2)(g) — Xiao error — timing of plea of guilty for both Commonwealth and State offences is largely determinative of objective or utilitarian value — that feature of offender’s plea attracts arithmetical sentencing discount — generally accepted that early plea of guilty for Commonwealth offence will attract 25% discount — plea was entered at earliest reasonable opportunity — enquiry into offender’s current attitude to offending as part of resentencing comprehends considerations of contrition and remorse — assessment does not attract arithmetical discount — while lack of remorse or contrition may be most material factor influencing sentence it is important to ensure that weight those considerations might attract are not treated in way that increases or diminishes utilitarian value of plea by some arithmetical measure — if offender has demonstrated contrition involving facilitation of course of justice this fact may be taken into account — there is no bright line test for distinguishing between objective and subjective considerations so factors may overlap — when sentencing Commonwealth offender who enters plea at or towards end of process it is appropriate to take into account sequenced nature of scheme and participatory role expected of defendants when determining appropriate discount for plea’s utilitarian benefit — nature and circumstances — s 16A(2)(a) — objectively grave offence concerning amount of cocaine in excess of 20 times commercial quantity — offender was responsible for all aspects of logistics connected with shipment — offender was well aware of amount of cocaine they shipped to Sydney — involvement extended for number of weeks prior to shipment — only reasonable inference is that offender involved himself in criminality of such high order because of significant profit to be made — contrition — s 16A(2)(f) — not persuaded offender is remorseful for crime as opposed to regretful at being apprehended for committing it — offender maintained they had no knowledge of cocaine cargo and had simply been reckless in taking up too quickly what seemed to be good business proposition — agreed facts establish falsity of offender’s contentions — offender claimed to have little understanding of seriousness of conduct which cannot be accepted from person of 29 years employed in role which required them to regularly travel internationally — rehabilitation — s 16A(2)(n) — although absence of genuine and complete remorse can be inconsistent with offender having good future prospects offender’s prior good character and history of solid employment point to sound prospects of rehabilitation — appeal allowed — sentence quashed — offender sentenced to 11 years’ and 3 months imprisonment with 8 year and 5 month non-parole period  
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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