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Nweke v The Queen [2020] NSWCCA 153

appeal against sentence — conspiracy with persons unknown to import a commercial quantity of a border controlled drug offence contrary to s 11.5(1) and s 307.1(1) of the Commonwealth Criminal Code — offence relates to 2.514 kilos of pure cocaine — original sentence imposed 13 years’ and 9 months imprisonment with a 10 year and 6 month non-parole period — non-parole period — s 19AQ(1) — sentence partially accumulated on balance of earlier sentence imposed for previous drug importation offence — offender sentenced in 2007 for aiding and abetting importation of trafficable quantity of border controlled drug — sentence imposed 10 years’ imprisonment with a 6 year and 6 month non-parole period — present offence committed whilst offender on parole for earlier offence — by force of s 19AQ(1) parole order in respect of that sentence was taken to have been revoked upon imposition of sentence for the present matter — unserved part of earlier sentence was 3 years’ and 6 months — sentencing judge construed s 19AQ(5) to mean that offender was liable to serve whole of that term — if offender’s submission, that s 19AQ(5) has no operation where sentencing for further offence occurs after expiry of earlier parole period because that subsection does not refer to s 19AQ(2), is correct, the result would be inconsistent with that s 19APB provides — s 19APB expressly picks up circumstances in the present case where offender is not sentenced until after earlier parole period has expired — result is that s 19APB(1) applies, and offender is taken to be still under sentence and not to have served that part of the sentence that remained to be served at the beginning of the parole period — s 19AQ(5) is subject to the operation of s 19AA(2) — s 19AA qualifies the prima facie harshness of s 19AQ(5) by enabling offender to receive a credit in respect of period spent on parole up to date of commission of further offence — sentencing judge did not consider that s 19AQ(5) was subject to s 19AA(2) and in that way failed to give credit for “clean street time” — proper approach is that offenders against criminal law of Commonwealth are entitled to credit for “clean street time” whilst on parole — offender’s “clean street time” was 2 years’, 5 months and 27 days — period offender was required to serve by reason of the breach of that parole was 12 months and 2 days, not the whole of the parole period earlier imposed of 3 years’ and 6 months — re-sentence — belief of learned sentencing judge that offender “owed” 3 years’ and 6 months of balance of parole, when in fact there were only 12 months remaining to be served, necessarily calls for substantive re-consideration of head sentence imposed for this conspiracy — not only because new head sentence was partly cumulative on balance of parole, but also because sentencing judge, in accordance with Commonwealth sentencing regime, imposed a new, single non-parole period that encompassed both bases of incarceration — nature and circumstances of the offence — s 16A(2)(a) — role of offender was undoubtedly significant — failed conspiracy was founded upon heartless manipulation of an innocent agent — contrition — s 16A(2)(f)(ii) — expressions of remorse placed before sentencing judge — in light of plea of not guilty and failure of offender to enter witness box in proceedings on sentence, sentencing judge did not give those expressions great weight — efficiency — in light of highly efficient way in which trial focused on single issue, discount of 5% applied — character — s 16A(2)(m) — important evidence on sentence of criminal record of offender along with intertwined history of incarceration in prisons and detention in immigration detention centres — except for period of some months in 2012 and early 2013, offender has not been at liberty for period of more than 15 years — specific deterrence — s 16A(2)(j) — rehabilitation — s 16A(2)(n) — weighing against the quantity of cocaine not far beyond the statutory “cut-off point” relating to commercial quantity of substance was brazenness of committing offence of this gravity inside detention centre, fact offender was not only on parole but also for same kind of offence, patently high moral culpability of offender, obviously important role to be played by specific deterrence and necessarily guarded finding about prospect of rehabilitation — sentence — imposed 13 years’ and 3 months imprisonment with a 8 year and 6 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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