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Patel v The Queen [2022] NSWCCA 93

The offender was sentenced following a plea of guilty to 1 count of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug contrary to ss 307.6(1) and 11.1(1) of the Commonwealth Criminal Code and 1 count of trafficking a substance, being a controlled drug, contrary to s 302.4(1) of the Commonwealth Criminal Code. Offending related to 75.45g and 9.31g of pure MDMA respectively. Additional attempted drug possession offences were taken into account pursuant to s 16BA. Original sentence imposed 4 years and 6 months imprisonment with a non-parole period of 2 years and 8 months. Offender appealed on grounds that the sentencing judge did not consider the offender’s good character, did not take into account the lack of sophistication of the offending, did take into account a need for local deterrence, erred in finding the offender’s use of MDMA was a lifestyle choice and that the sentence was manifestly excessive.

Character: Sentencing judge expressly referred to the principle that prior good character of a person involved in drug importation is generally given less weight as a mitigating factor. Offending involved the repeated planned importation of prohibited substances in an ongoing course of conduct and could not be passed off as a spontaneous out-of-character aberration. While the sentencing judge did not proceed on the basis the offender was of bad character, there was little scope for a finding of good character such as to operate as a material mitigating factor. Weight given to the offender’s character was very much in the sentencing judge’s province.

Nature and Circumstances: It may be accepted that the presence of sophistication in a criminal enterprise may sometimes operate as an aggravating factor. But it does not follow that a lack of sophistication is a mitigating factor; it is no more than the absence of a feature that would otherwise be aggravating. It cannot be said that the offender’s conduct was not premeditated (indeed, it was repeated); nor that it did not involve deception (the use of names other than the offender’s own).

General Deterrence: Offender submitted there was no sound basis for concluding that a harsher sentence was required to meet the need for general deterrence because the offence occurred in the Northern Rivers region. Sentencing judge’s observations and reasoning were not confined to the specific offences of the offender, but to drug offending generally, and founded on evidence tended in a psychologist report. Evidence reinforced the requirement for general deterrence, particularly in the local context, and provided a sufficient basis for the conclusion that there was a prevalent attitude to drug use in the region requiring deterrence. Although the sentencing judge did no more than use their local experience to confirm the effect of the evidence adduced, there is no reason why a magistrate or judge who sits regularly in a particular locality or region cannot draw on general observations derived from that experience to inform their decision-making.

Contrition: Sentencing judge did not refer to s 16A(2)(f) or to terms of remorse or contrition. Sentencing judge undoubtedly gave weight to the offender’s prospects of rehabilitation, but though there is a relationship, remorse and rehabilitation are distinct concepts and considerations. The absence of specific reference to contrition does not of itself show that it was not taken into account. However, in this case it was a significant matter, which was specifically addressed in the submissions of both parties, yet the sentencing judge did not duly consider it. If in stating that while having undertaken great steps towards rehabilitation the offender was ‘nonetheless still trying to downplay the extent of [their] criminal conduct’ the sentencing judge found the offender had demonstrated only limited remorse or contrition so that it was not a significant consideration, such a conclusion would have been contrary to the evidence.

Leave to appeal allowed. Appeal granted. Original sentence quashed. Offender resentenced 3 years and 6 months imprisonment commencing on 8 July 2020 with respect to Count 1 and 15 months imprisonment commencing on 8 January 2023 with respect to Count 2, with a non-parole period of 2 years dating from 8 July 2020.
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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