Abreu v The Queen

[2020] NSWCCA 286

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Abreu v The Queen [2020] NSWCCA 286

Hearing dates:

7 September 2020

Date of orders:

6 November 2020

Decision date:

06 November 2020

Before:

McCallum JA at [1];
Campbell J at [2];
N Adams J at [55]

Decision:

(1) Under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) extend the time for filing the application for leave to appeal, nunc pro tunc to 16 June 2020;

(2)   Grant leave to appeal;

(3)   Appeal allowed;

(4)   Quash the sentences passed in the District Court of New South Wales on 3 November 2016 and instead sentence the applicant as follows:

(a) For the offence contrary to s 400.4 of the Criminal Code (Cth) of dealing with the proceeds of crime impose a term of imprisonment of 1 year and 6 months duration commencing on 4 October 2014 and expiring on 3 April 2016; and

(b) For the offence contrary to s 307.8 of the Criminal Code (Cth) of possessing a commercial quantity of a border controlled drug and taking into account the matter on the schedule under s 16BA of the Crimes Act 1914 (Cth) impose a term of imprisonment of 10 years and 2 months duration commencing on 4 March 2015 and expiring on 3 May 2025;

(c) Under s 19AB of the Crimes Act 1914 (Cth) fix a non-parole period of 6 years and 2 months commencing on 4 October 2014 and expiring on 3 December 2020;

(d)   The applicant is first eligible for release on parole after the expiration of the non-parole period on 3 December 2020;

(e)   The total effective sentence is one of 10 years and 7 months.

(5) Under s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(c) of that Act the heading to and paragraphs [44] – [45] of the reasons of Campbell J are suppressed throughout the Commonwealth of Australia for a period of 5 years after the date of publication of this judgment.

Catchwords:

CRIME – appeal – appeal against sentence –extension of time in which to appeal

CRIME – appeal – appeal against sentence – where sentencing Judge excluded utilitarian value of applicant’s plea of guilty – where Xiao error established – where lesser sentence warranted – where applicant re-sentenced

Legislation Cited:

Crimes Act 1914 (Cth) ss 16A, 19AB

Criminal Appeal Act 1912 (NSW) ss 6(3), 10(1)(b)

Criminal Code (Cth) ss 11.2A(1), 307.10(1), 307.8(1), 400.4(1)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bae v R [2020] NSWCCA 35

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Diaz v R [2019] NSWCCA 216

House v The King (1936) 55 CLR 499; [1936] HCA 40

Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57

Jinde Huang aka Wei Liu v The Queen (2018) 272 A Crim R 266; [2018] NSWCCA 70

Kaurasi v R (Cth) [2020] NSWCCA 253

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Moodie v R [2020] NSWCCA 160

Naizmand v R [2018] NSWCCA 25

R vBorkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R v Nguyen, R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238

RO v R [2019] NSWCCA 183

Turnbull v R [2019] NSWCCA 97

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Haydro Luis Abreu (Applicant)
The Queen (Respondent)

Representation:

Counsel:
M. Avenell (Applicant)
L. Fernandez (Respondent)

Solicitors:
Legal Aid Commission of NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2013/360893

Publication restriction:

The heading to and paragraphs [44] – [45] to be supressed throughout the Commonwealth of Australia for a period of 5 years after the date of publication of this judgment.

Judgment

1. McCALLUM JA: I agree with Campbell J. I particularly wish to endorse his Honour’s analysis of the proper approach to resentencing in a case where error is established or conceded. It is now well established that the familiar contention that “no lesser sentence is warranted in law” cannot be assessed, as Campbell J neatly puts it, in “a merely summary manner”. The duty of this Court is to exercise the sentencing discretion afresh. That duty is not discharged “merely by adopting the sentence imposed at first instance and concluding that ‘no lesser sentence is warranted in law’: Turnbull v R [2019] NSWCCA 97 at [44] (Simpson AJA; Ierace J agreeing at [166]); approved in RO v R [2019] NSWCCA 183 at [79]-[82] (Beech-Jones J; Bathurst CJ and N Adams J agreeing at [1] and [117]).

2. CAMPBELL J: The applicant seeks leave to appeal from the sentence passed upon him in the Sydney District Court on 3 November 2016 by his Honour Judge ML Williams SC. The applicant pleaded guilty to offences of possessing a commercial quantity of a border controlled drug contrary to ss 307.8(1) and 11.2A(1) Criminal Code (Cth) and dealing with the proceeds of crime contrary to ss 400.4(1) and 11.2A(1) Criminal Code.

3. The drug offence carries a maximum penalty of life imprisonment. The learned sentencing judge sentenced the applicant to a term of imprisonment of 11 years and 3 months with a non-parole period of 6 years and 6 months commencing on 4 April 2015. The non-parole period expires on 3 October 2021. When passing sentence for this offence, the sentencing judge took into account an offence on a schedule under s 16BA Crimes Act 1914 (Cth) of possessing a small amount of cocaine contrary to s 307.10(1) Criminal Code.

4. The proceeds of crime offence carries a maximum penalty of 20 years imprisonment. The applicant was sentenced to a term of imprisonment of 1 year and 8 months commencing on 4 October 2014 and expiring on 3 June 2016.

5. The total effective sentence is one of 11 years and 9 months commencing on 4 October 2014, with an effective non-parole period of 7 years expiring on 3 October 2021. As is obvious from the structure I have described, to give bite to the sentence passed for the proceeds offence the sentencing judge partially accumulated the sentence for the more serious drug offence on it by a period of six months.

6. The sole ground of appeal propounded, if leave to appeal is granted, is that the sentencing judge failed to take into account the utilitarian value of the applicant’s guilty pleas.

Extension of time for notice to appeal

7. The applicant requires, and seeks, an extension of time to bring this application for leave to appeal against sentence which was filed some years out of time on 16 June 2020: s 10(1)(b) Criminal Appeal Act 1912 (NSW). The applicant relies on the consideration that the question as to whether a discount could be obtained for the utilitarian value of a guilty plea to a federal offence was not resolved until the decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 (“Xiao”) on 5 February 2018, some 16 months after he was sentenced.

8. The very detailed affidavits read in support of the application for the extension of time from Stephen Eccleshall dated 15 May 2020 and Suzanne Tezjan Knowles dated 16 June 2020, which need not be summarised here, establish that the delay in bringing the application is explained by the circumstance that the applicant is represented by Legal Aid NSW who did not receive approval to commence work on reviewing sentencing decisions where Xiao error may have been occasioned until July 2019. There was further administrative delay in preparing the matter which did not involve neglect on the part of either the applicant or the lawyers directly concerned. It was not until October 2019 that the applicant was able to be contacted about an application for Legal Aid to bring the application for leave to appeal. A “merits advice” was not available until 23 April 2020. Instructions were then sought to institute these proceedings, which were promptly forthcoming.

9. The Crown concedes Xiao error but for the purpose of resentencing the applicant argues that no lesser sentence is warranted in law. For this reason, the Crown submits the Court should consider refusing the required extension of time as serving no useful purpose.

10. I would grant the necessary extension of time until 16 June 2020. Given the concession of error, properly made, I would also grant leave to appeal. I acknowledge the Crown submission but every offender is entitled to be sentenced according to law. In the case of error the question of whether a lesser sentence is warranted in law raised by s 6(3) Criminal Appeal Act can only be answered by re-exercising the sentencing discretion afresh. It is not appropriate to attempt this in a merely summary manner in the context of the determination of an application for an extension of time to institute proceedings in this Court. This is not a case where it has been argued, or can be said, that the sentence passed is so demonstrably lenient that there is no prospect of a lesser sentence being imposed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [25], [32] and [33]. Indeed the thrust of the argument for the Crown was that an examination of all relevant facts, matters and circumstances, including a consideration of comparative sentences, demonstrated that the sentence passed at first instance was comfortably within range even allowing for the correction of the conceded error. Manifestly this involves more than a summary evaluation of the case.

The circumstances of the offending

11. The factual findings made by the sentencing judge were derived from a statement of agreed facts and were uncontested on appeal. What follows is drawn from his Honour’s reasons for sentence.

12. The applicant flew into Australia from the United States of America on 6 November 2013. On 11 November a person using the name Catherine Hartridge booked a room at the Star Casino hotel for a period of 18 days nominating the applicant as a joint occupant of the room. On 21 November the applicant attended Woolworths with his co-offender, a Mr Lajara, and they purchased a number of “green bags” for the purpose of storing illicit drugs and the scales used to weigh them. On 28 November Mr Lajara and another male left the casino by taxi carrying bags that appeared heavy.

13. Mr Lajara returned to the hotel. He and the applicant then left the casino, returning later carrying three bags. The following morning the applicant and Mr Lajara placed a bag in the rubbish section of the cleaner’s trolley which was unattended in the corridor near their room. A short time later federal police officers raided the hotel room to apprehend the applicant and Mr Lajara. A false passport, mobile phones that had photographs of the shopping bags, photographs of between $200,000 and $400,000 in cash and a number of notes containing code were located in the accommodation occupied by the two co-offenders. The police also located a suitcase containing quantities of white powder, $200,000 in cash and a number of items for storage and measuring which had been purchased at Woolworths. Another suitcase containing blocks of white powder and $140,000 in a safe near the applicant’s passport too were seized. Items of jewellery purchased by Mr Lajara in Australia were also in the room.

14. A forensic examination of the white powder assessed it as 11.991 kilograms of cocaine with a pure weight of 7.283 kilograms, the purity being between 44% and 73%. Police estimated the street value of the drug as between $5,200,000 and $5,800,000. The applicant’s DNA was found on the handle of one of the bags and traces of DNA found on another bag were probably his. DNA found on the outside of gloves inside the bag was his.

15. As there will a need for the Court to resentence the applicant I will refer to other relevant circumstances later in these reasons as appropriate.

Applicant’s submissions

16. The applicant submits that the sentencing judge erred in law because his Honour did not take into account the utilitarian value of the applicant’s guilty plea and accordingly that this Court should find Xiao error and exercise its discretion to re-sentence the applicant afresh: Xiao at [277]-[278]; Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 at [15]-[16]; Naizmand v R [2018] NSWCCA 25 at [27]; Diaz v R [2019] NSWCCA 216 at [73]-[87]; Bae v R [2020] NSWCCA 35 at [48]-[53].

17. The applicant conceded that his Honour did not in express terms deny an utilitarian discount. Rather he relied on the inference drawn from his Honour’s remarks “that New South Wales guidelines judgments do not apply to federal offences” as demonstrating that his Honour acted in compliance with the previous understanding of the law. For clarity I will set out the relevant passage in full (Application Book, pp 56-7):

It is recognised that the New South Wales guidelines judgments do not apply to federal offences, but discounts for a guilty plea can be afforded if the plea demonstrates the subjective mitigation of genuine remorse, acceptance of responsibility, and/or a willingness to facilitate the course of justice. It is unnecessary in federal offences to quantity (sic) the discount, as long as it is taken into account. …

As to the extent of the discount for the willingness to facilitate the course of justice, demonstrated by the plea, there are some complications, in that this was not a plea at the earliest possibility (sic) opportunity, but that Mr Abreu, due to a change of legal representation in 2015, perhaps there was some delay in the matter ultimately being listed. In April 2015, he waived his right to a committal and, in June 2015, the matter was fixed for trial on 8 February 2016. That trial date was vacated due to the unavailability of counsel and a new trial date of 6 June 2016 was set.

Between March and May 2016, there were negotiations which led to the offender indicating on 18 May that he would enter pleas of guilty and that indication was confirmed by his arraignment and plea before Judge Henson on 23 May.

The sentencing judge did not explicitly assess and attribute a specific utilitarian value to the plea or make reference to any available discount in that regard in percentage terms.

Crown’s submissions

18. The Crown conceded that the sentencing judge did not take into account the utilitarian value of the applicant’s guilty pleas but argued, as I have already said, that the close examination of the relevant matters establishes that no lesser sentence is warranted.

Consideration

19. In Xiao this Court held that in proceedings governed by s 16A Crimes Act a sentencing court is entitled to give a discount for the utilitarian value of a guilty plea when sentencing an offender because of the language of s 16A(2)(g) requiring a sentencing court to “take into account” the “fact” of a plea of guilty: Xiao at [278]. The Court also expressed the view that “the interests of transparency” favoured specifying in express terms the degree of discount afforded an offender: Xiao at [280]. Although, a failure to so specify would not without more amount to error.

20. Judgment in Jinde Huang aka Wei Liu v The Queen (2018) 272 A Crim R 266; [2018] NSWCCA 70 was handed down at the same time as the judgment in Xiao. Applying Xiao (at [46], Bellew J; Bathurst CJ, Beazley P, Hoeben CJ at CL and McCallum J (as her Honour then was) agreeing) it was held that the sentencing judge had erred by not taking into account the utilitarian value of the guilty pleas. This was concluded from the considerations that the sentencing judge had not made reference to the utilitarian value of the pleas and had only taken the pleas of guilty into account, like the sentencing judge, as evincing a willingness to facilitate the course of justice on the offender’s part.

21. Given the remarks of the sentencing judge set out at [17] above, despite his Honour’s observations that the plea of guilty entitled the applicant to a “discount” for his willingness to facilitate the course of justice, the concession by the Crown that his Honour erred by not separately considering the utilitarian value of the plea is properly made. It is apparent from his Honour’s statement that “the NSW guideline judgments do not apply” that his Honour had no regard to the utilitarian value of the plea in conformity with the understanding of the law then current, given that his Honour sentenced the applicant before the law was clarified by the decision in Xiao. Moreover at the sentencing hearing the Crown expressly submitted that the preferable view of the law was that for federal offences a discount for the utilitarian value of a guilty plea was not available, notwithstanding contrary interstate authority. The applicant did not counter this submission, doubtless having regard to the contrary decisions of this Court binding on the sentencing judge preceding Xiao.

22. The sentencing judge’s error in failing to take into account the utilitarian value of the applicant’s guilty plea necessitates this Court exercising its independent sentencing discretion afresh to determine whether a lesser sentence is warranted: s 6(3) Criminal Appeal Act 1912 (NSW); Kentwell at [42]-[43].

Factors relevant to re-sentencing

The nature and circumstances of the offence – s 16A(2)(a)

23. The sentencing judge did not find it necessary to make a finding assessing the objective seriousness of the offending in terms. His Honour did however identify the factors relevant to this central consideration, including:

1. The offence involved the possession of a large commercial quantity of cocaine which was 3.6 times greater than the prescribed amount for a commercial quantity and having a street value of around $5.5m;

2. The offending was deliberate and planned as evidenced by the applicant’s journey, and prior journeys, to Australia, his purchase of a mobile phone under a false name and address and the purchase at Woolworths of bags for storing and transporting the illicit drugs;

3. The applicant committed the offence for profit (his Honour accepted that there were no “amateurs” in this field of illegal endeavour) (AB 56); and

4. The applicant “played a trusted role as an intermediary in the overall enterprise” which went beyond being merely a courier of the drugs (AB 55).

24. The applicant did not challenge his Honour’s findings and did not suggest it was necessary to encapsulate the objective seriousness of the offending in an assessment made by reference to a notional “mid-range”. The Crown submitted the Court should infer from the findings of the sentencing judge that the offending was “above the middle of the range”.

25. Were it necessary to express a conclusion in such terms, my view is that the objective seriousness of the offending should be assessed as at the lower end of the mid-range of possession of a commercial quantity of a border controlled drug. Being motivated by the prospect of financial gain is regarded as an aggravating circumstance, however the degree of aggravation is largely notional as, other than in the most exceptional case where one may act under some form of “duress”, all drug runners are in it for the money, as the sentencing judge wryly explained.

Deterrence and the need to ensure adequate punishment – s 16A(2)(j), (ja), (k)

26. As the trial judge explained by reference to R v Nguyen, R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72] (g) (AB 54-5) “deterrence is to be given chief weight on sentence and … stern punishment will be warranted in almost every case”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64]. This principle and the other “general propositions” identified by Johnson J (at Nguyen [72] (a)-(k)) are applicable to the applicant’s case.

Other offences required or permitted to be taken into account – s 16A(2)(b)

27. As I have already said, the sentencing judge took into account the offence of possession of cocaine. I note that this offence was committed while the applicant was on bail, and thereby bound to be of good behaviour, but the amount involved was small suggestive of possession for personal use only.

Character, antecedents, age, means and physical or mental health – s 16A(2)(m)

28. The applicant is 41 years of age and was 34 at the time of the commission of the offences. He is an American citizen, with no children or spouse. He was self-employed in his home country as an event planner and producer.

28. A report by psychologist Dr Stephen Woods, tendered before the sentencing judge, outlines that the applicant grew up in the Dominican community in New York City, where serious crime, drugs and criminal associations were an everyday part of life. He has a history of trauma and melancholic dysthymia resulting from witnessing his uncle die from gunshot wounds at age 9 or 10. His father was murdered when he was 12 or 13. Since the age of 16 or 17 the applicant has had a history of heavy substance abuse and gambling. Dr Woods diagnosed the applicant with post-traumatic stress disorder, a persistent depressive disorder, pathological gambling disorder and polysubstance abuse disorders. At the time of his report Dr Woods noted that the applicant was suffering from symptoms of anxiety, sleep disturbance, severe chronic testicular pain and emotional isolation. His Honour, appropriately in my view, with respect, “by analogy” (AB 58) took into account in the applicant’s favour the principles established in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 as attenuating the moral culpability which may otherwise have been associated with offending of this type.

29. I would not regard the applicant’s mental health issues as described by Dr Woods as further reducing his moral culpability. Like the sentencing judge, I would find it difficult to conclude that they were integral to this offending. The sentencing judge’s conclusion about this is not challenged on appeal. On the other hand they may serve to increase the burden of his incarceration, as he states in his affidavit of 18 August 2020. He has received treatment for these conditions in gaol.

30. In regards to his physical health, the applicant affirms that since his initial arrest he has had a growth in his scrotum, which has continued to grow during his time in custody. More recently he has experienced severe pain from the growth requiring referral to an urologist: Affidavit, Hayro Luis Abreu, 18 August 2020 at [48]. That treatment for general medical conditions is not as readily available in gaol as in the community also makes the applicant’s time in custody more difficult than for others not so afflicted.

31. I acknowledge that as an American citizen and resident the applicant has had infrequent visits from his family, who reside in the United States making his time in gaol yet again more difficult than a person with local community support. It must be borne in mind however that he brought himself to these shores far from his home to profit from serious drug offending. I recognise that his experience of isolation has been heightened by the Covid-19 pandemic which has hit New York particularly hard. In April-May 2020 the applicant’s maternal aunt, uncle and 43 year old cousin died in New York from Covid-19. Since then the applicant has suffered deterioration in his mental condition. In May 2020 the applicant was prescribed with 15mg APO-MIRTAZAPINE, an antidepressant. On 7 August 2020 his doctor changed this prescription to 50mg of Zoloft.

32. I take into account that the applicant has a history of offending in the United States including drug offending. He has no criminal record in Australia. In 1998 the applicant was convicted of theft by deception, receiving stolen property and forgery and was sentenced to 6 months’ probation. In 1999 the applicant was convicted of criminal possession of narcotics with intent to sell and was sentenced to 5 years’ probation and his licence was suspended for six months. In 2003 the applicant was convicted of conspiracy to commit access device fraud and sentenced to 3 years and 2 months imprisonment with 6 years’ supervised release.

Contrition & rehabilitation - s 16A(2)(f), 16A(2)(n)

34. Prior to being sentenced, as Dr Woods reported and the sentencing judge accepted, the applicant demonstrated a strong commitment to rehabilitation while on remand. He also assisted other inmates to cope with the stresses of being on remand. When he was at Long Bay Correctional Centre the applicant engaged with chaplaincy services and on evidence put before the sentencing judge, Reverend Peter Baines and Buddhist Chaplain Anna Carmody said that the applicant had expressed regret for his crimes.

35. Since sentence, the applicant has continued to demonstrate this same strong commitment to rehabilitation, taking up positions of responsibility during his time in custody, including as a librarian, a sweeper (which is regarded as a trusted position in the prison system), a clerk in the timber products section and a kitchenhand: Affidavit, Hayro Luis Abreu, 18 August 2020 at [23] – [29]. While at Long Bay the applicant and his cellmate started an inmate peer support group, literacy group and drug rehabilitation group.

36. The applicant has been punished for two gaol disciplinary infractions. The first occurred in February 2018 when the applicant opened the cell door of another inmate without authority and the second in April 2018 when he was found with two cartons of milk above his allowance. However, despite these matters the applicant has continued to progress in custody in a very satisfactory way. I do not regard these as matters of serious infringement.

37. The applicant has not regressed in his classification at any time, indeed he progressed through the various available classifications appropriately for an inmate of good conduct. He has remained abstinent from drug abuse.

38. The sentencing judge made a finding most favourable to the applicant in the following terms (AB 57):

I accept … that the offender has largely seen the error of his ways and demonstrated through his efforts in custody that his prospects of rehabilitation will ultimately be good, assuming he continues to conduct himself in a favourable manner while in custody.

From his unchallenged affidavit to which I have already referred, it is apparent, and I so find, that the applicant has continued to conduct himself in a favourable manner in custody and that his Honour’s prognosis has been borne out. Notwithstanding the applicant’s past history of drug offending in the United States, I am of the view, given his commendable efforts at rehabilitation and the pro-social supports that seem likely to be available to him when he is returned to the United States, that it is unlikely that he will offend in this way again.

Plea of guilty – s 16A(2)(g)

39. The applicant is entitled to a discount for his pleas of guilty to the charges. However, the applicant did not enter his plea at the earliest available opportunity but only did so a little over two weeks before his trial was due to commence on 6 June 2015. Nonetheless, given the trial had an estimate of four weeks, the applicant’s pleas benefited the administration of justice. Despite the absence of a discount for its utilitarian value, his Honour did take the plea into account in other ways favourable to the applicant (AB 56-7).

40. Although it is not strictly an error for a sentencing judge not to specify the discount allowed in percentage terms this is not the preferred practice. The interests of transparency in sentencing are advanced by quantifying the discount allowed in express terms. This is conventional practice in NSW.

41. As I have stated, the applicant indicated his intention to plead guilty on 18 May 2015 and formally entered the pleas when arraigned again on 23 May 2015. I accept the Crown submission that in assessing the plea’s utilitarian value sight should not be lost of the consideration that an earlier trial fixed to commence on 8 February 2015 was adjourned, obviously prior to the entry of the pleas, due to the unavailability of the applicant’s senior counsel of choice.

42. The nature of a discount for the utilitarian value of a plea of guilty is authoritatively established by the decision of this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 where Howie J (McClellan CJ at CL and Simpson J (as her Honour then was) agreeing) explained the concept of the utilitarian value of a guilty plea for State offences. His Honour, with the agreement of the other members of the Court encapsulated the law in the twelve principles formulated at [32] as stated below. I have omitted the references to other authorities. The principles are oft-cited and now applied to Commonwealth offences: Bae at [52] (Johnson J; Bell P and Walton J agreeing); Kaurasi v R (Cth) [2020] NSWCCA 253 at [40] (Wilson J; Fullerton and Ierace JJ agreeing on this point):

1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount.

2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy.

3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse; nor is it affected by post-offending conduct.

4. The utilitarian discount does not take into account the strength of the prosecution case.

5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse or for the ‘Ellis discount’.

6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence.

7. There may be offences that are so serious that no discount should be given where the protection of the public requires a longer sentence.

8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced.

9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain; or where the offender is waiting to see what charges are ultimately brought by the Crown; or the offender has delayed the plea to obtain some forensic advantage, such as having matters put on a Form 1.

10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value.

11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount.

12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

43. Principles 1, 3, 4, 5, 8 and 9 are relevant to the present case. Of these, as in so many cases, the timing of the plea is the most salient. Practice and authority in NSW prior to the enactment of the current statutory scheme established that a plea of guilty entered for the first time in the court of trial after committal attracted a discount in the range of 10-15 percent, again depending on the timing of its entry. A plea entered for the first time on the first day of trial was always regarded as “late” attracting a discount of no more than 10 percent. The applicant’s plea was indicated and entered a little earlier than this, but not by much in the overall scheme of things. I am of the view that the lost first trial reduces the utilitarian advantage of the plea somewhat, in any event. Although something slightly higher could perhaps be justified in the circumstances I am of the view that the applicant should be afforded a discount of 10 percent on the sentence that would otherwise have been passed for what is, really, a late plea of guilty. Only for completeness I record that the current statutory scheme is found in Division 1A of Part 3 Crimes (Sentencing Procedure) Act 1999 (NSW) and applies to proceedings commenced after 30 April 2018, but generally not to Commonwealth offences. It alters the previous law and practice applicable to State offences.

[Heading Suppressed]

44. [Paragraph suppressed].

45. [Paragraph suppressed]

Parity

46. I acknowledge that in sentencing the applicant I should have regard to the sentence imposed on the applicant’s co-offender. He was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years for like offending. Both offenders were sentenced by ML Williams SC DCJ, albeit at different times. Despite the differences in the charges brought against each, the sentencing judge found it hard to “see any real distinction” in their offending (AB 58). Moreover a consideration of the reasons for the sentence passed on the co-offender demonstrates that he too had a positive subjective case (AB 251). When one has regard to the co-offender’s plea of guilty at the first available opportunity it may fairly be said that the applicant was treated somewhat more favourably. I would take the same approach as the sentencing judge to the question of parity.

Sentence

47. To make good its argument that notwithstanding the demonstrated error contrary to Xiao no lesser sentence is warranted in law, the Crown referred to 9 comparable cases involving 12 offenders said to show that the sentence imposed below sits within the range or pattern established by the application of the yardstick provided by those cases. Specific reference was made to those “with most similarities to the applicant’s case”. I accept the consideration of truly comparable cases is a relevant matter for sentencing purposes. It is sufficient to refer to the recent case, invoked by the Crown, of Moodie v R [2020] NSWCCA 160 at [81] – [89], Bell P; Davies and N Adams JJ agreeing. But given the limited use the Crown seeks to make of them I think it unnecessary to analyse them in detail.

48. Applying the applicable “general propositions” from Nguyen (referred to above) and having regard to the comparable cases relied upon by the Crown, I am satisfied on my own reconsideration of all facts, matters and circumstances relevant to sentencing this offender for this offence that the sentence passed by the sentencing judge was in all respects appropriate, but for the effect of the Xiao error.

49. For reasons like those expressed by Fullerton J (at [1] – [4]) and by Ierace J (at [64] – [68]) in Kaursi v R (Cth) I am of the view that generally the utilitarian discount should be specified.

50. The offender is entitled to be sentenced according to law, and as the plurality of the High Court in Kentwell said (at [42]) once House v The King ((1936) 55 CLR 499; [1936] HCA 40 at 505) error has been identified it is not for this Court to assess the degree of materiality of the error. The sentencing discretion has miscarried and it is “the duty” of this Court to exercise “the discretion afresh” according to law. In the present case the sentencing discretion below has miscarried because his Honour did not take into account the material consideration represented by the utilitarian value of the applicant’s plea of guilty. In Kentwell their Honours also said (at [42]):

A sentence that happens to be within the range but that has been imposed as a result of a legally flawed determination is not “warranted in law” unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. (My emphasis)

51. Given the discretionary nature of the power that the Court is required to exercise in re-sentencing for the purpose of s 6(3) Criminal Appeal Act it is not possible to say that every case of Xiao error will require a different outcome from the sentence imposed below. At the same time, and as a general rule, in my view, where, as here, all other relevant facts, matters and circumstances are undisturbed, the appropriate explicit discount should be applied by this Court so that justice may be both done and seen to be done.

52. As I have already said, I would allow a discount of 10 percent for the applicant’s plea of guilty to each offence. It should not be forgotten that he pleaded guilty to two serious offences, notwithstanding that the sentence imposed for the proceeds of crime offence has expired. The drug importation offence was partially accumulated on that sentence and it is the total effective sentence that the applicant is required to serve. I would reduce both sentences by 10 percent, adjusting the quotient by a process of rounding where necessary. For the purpose of s 19AB Crimes Act I would maintain the ratio adopted by the sentencing judge of fixing a single non-parole period equivalent to about 58 percent of the total effective sentence.

53. Reducing the sentence for the proceeds of crime offence by 10 percent produces a sentence of 18 months duration from 4 October 2014, the date selected by the learned sentencing judge to accommodate time served prior to sentencing. This sentence would have expired on 3 April 2016. It seems to me given the reduction in this sentence for the utilitarian value of the plea of guilty it is also appropriate to adjust the degree of accumulation adopted by the sentencing judge. I would accumulate the sentence for possessing a commercial quantity of a border controlled drug after five months, rather than six. Adopting a degree of rounding, the sentence of 11 years and 3 months is reduced by 10 percent to one of 10 years and 2 months commencing on 4 March 2015 and expiring on 3 May 2025. The total effective sentence is one of 10 years and 7 months. The preservation of the ratio between the total effective sentence and the non-parole period for the purpose of s 19AB Crimes Act results in a non-parole period of 6 years and 2 months commencing on 4 October 2014 and expiring on 3 December 2020.

54. The orders I propose are:

1. Under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) extend the time for filing the application for leave to appeal, nunc pro tunc to 16 June 2020;

2. Grant leave to appeal;

3. Appeal allowed;

4. Quash the sentences passed in the District Court of New South Wales on 3 November 2016 and instead sentence the applicant as follows:

1. For the offence contrary to s 400.4 of the Criminal Code (Cth) of dealing with the proceeds of crime impose a term of imprisonment of 1 year and 6 months duration commencing on 4 October 2014 and expiring on 3 April 2016; and

2. For the offence contrary to s 307.8 of the Criminal Code (Cth) of possessing a commercial quantity of a border controlled drug and taking into account the matter on the schedule under s 16BA of the Crimes Act 1914 (Cth) impose a term of imprisonment of 10 years and 2 months duration commencing on 4 March 2015 and expiring on 3 May 2025;

3. Under s 19AB of the Crimes Act 1914 (Cth) fix a non-parole period of 6 years and 2 months commencing on 4 October 2014 and expiring on 3 December 2020;

4. The applicant is first eligible for release on parole after the expiration of the non-parole period on 3 December 2020;

5. The total effective sentence is one of 10 years and 7 months.

5. Under s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW) on the ground specified in s 8(1)(c) of that Act the heading to and paragraphs [44] – [45] of the reasons of Campbell J are suppressed throughout the Commonwealth of Australia for a period of 5 years after the date of publication of this judgment.

55. N ADAMS J: I agree with Campbell J and the additional reasons by McCallum JA.

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Decision last updated: 06 November 2020