Diaz v R

[2019] NSWCCA 216

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Diaz v R [2019] NSWCCA 216
Hearing dates:	5 July 2019
Decision date:	13 September 2019
Before:	Gleeson JA at [1] Button J at [4] Lonergan J at [94]
Decision:	(1) Leave to appeal against sentence granted. (2) Appeal upheld. (3) The sentence imposed by M L Williams SC DCJ on 27 January 2017 is quashed. (4) The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non-parole period of 4 years 6 months, expiring on 5 May 2020.
Catchwords:	CRIME – APPEALS – appeal against sentence – application for leave to appeal – attempting to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1)) – self-represented applicant – proposed grounds devoid of merit – no assertion of Xiao error in grounds – consideration of Xiao error – Xiao error established – sentencing judge provided 25% discount for facilitation of justice – whether applicant to be resentenced – applicant resentenced afresh – 25% discount for utilitarian value of plea applied
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 6(3) Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.1(1)
Cases Cited:	Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DPP (Cth) v Masange; DPP (Cth) v Kachunga [2017] VSCA 204 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Newman (a pseudonym) v R [2019] NSWCCA 157 Obiekwe v R [2018] NSWCCA 55 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category:	Principal judgment
Parties:	Luis Diaz (Applicant) Regina (Respondent)
Representation:	Counsel: H Ginges (Commonwealth DPP) (Respondent) Applicant (self-represented)   Solicitors: Commonwealth Directors of Public Prosecutions (Respondent)
File Number(s):	2015/327238
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 27 January 2017 Before: M L Williams SC DCJ File Number(s): 2015/327238

Judgment

1. GLEESON JA: I agree with Button J for the reasons given by his Honour that the four grounds of appeal advanced by the applicant are without merit.

2. I also agree with Button J that although not expressly raised by the applicant’s grounds of appeal, there is error on the face of the reasons of the sentencing judge who did not consider the matter identified in s 16A(2)(g) of the Crimes Act 1914 (Cth) in the manner stated by this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. To be fair to the sentencing judge, the decision in Xiao was delivered after the sentencing judge had delivered his decision. This Court held in Xiao at [278] that a sentencing judge is entitled to take the utilitarian value of a plea of guilty into account in sentencing. Here, notwithstanding the applicant’s early guilty plea indicated on 22 June 2016 and formally entered on 6 July 2016 at Central Local Court, the sentencing judge did not do so.

3. Accepting that error has occurred, it is necessary that this Court itself sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Taking into account the matters identified in s 16A(2) of the Crimes Act to the extent that they are relevant in this case, I agree with the sentence and orders proposed by Button J for the reasons given by his Honour.

4. BUTTON J:

Overview

5. The contents of this judgment can be summarised as follows.

6. First, I am satisfied that each of the proposed grounds relied upon by Mr Luis Diaz (the applicant), who was unrepresented in this Court, with regard to an appeal against the sentence to which he is currently subject (for the Commonwealth offence of attempting to import a commercial quantity of a border controlled drug, contrary to the Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.1(1)) is devoid of merit. For that reason, I shall be brief in my discussion of them.

7. Secondly, although no ground asserted a failure to comply with the principle in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, that is, a failure to provide, as appropriate, a utilitarian discount for a plea of guilty in a Commonwealth matter (henceforth “Xiao error”), that error may be discerned in the remarks on sentence.

8. Thirdly, the Crown was aware of the issue, made written and oral submissions in this Court about it, and was therefore undoubtedly on notice of it, despite it not having been notified as a ground of appeal by the unrepresented applicant.

9. Fourthly, I consider that Xiao error is established. As for the question of whether it is, in the circumstances of this case, the kind of error that does not call for consideration of resentence pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW), I think that the question should be answered in the negative; to remove that confusing double negative, I think that resentence must be considered.

10. Fifthly, exercising the sentencing discretion afresh and doing my best not to be “anchored” by the sentence imposed at first instance, I would impose a slightly shorter head sentence and non-parole period than those imposed at first instance.

11. Sixthly and finally, that means that I would resolve the appeal by resentencing the applicant to a slightly shorter head sentence and a slightly shorter non-parole period, with an unchanged commencement date.

Summary of objective and subjective features

12. The following review of objective features is derived from the remarks on sentence of M L Williams SC DCJ (the sentencing judge) of 27 January 2017.

13. On 6 November 2015, members of the Australian Border Force boarded a cruise ship that was off Sydney Heads. They found that three passengers who were ostensibly travelling separately, the applicant, Mr Cesar Ruiz, and Mr Richard Gershuny, were each in possession of about 3 ½ kg of pure cocaine. Each was a middle-aged man who had had his ticket (worth almost AU$19,000) paid for him to embark on the cruise, which had departed from Barcelona in Spain. Clearly enough, although they were not co-offenders in the one shared offence in the strict sense, they had all been engaged by the one joint criminal enterprise to undertake the same unlawful task.

14. In the cabin of the applicant, the officers found cycling pants and shoes that were unusually heavy. The applicant at first claimed that the items were legitimately weighted for fitness purposes. In fact, they contained the prohibited drug in question. He eventually confessed that he was to receive US$10,000 for bringing it into this country, as well as speaking of the following matters.

15. He stated that he was a US citizen who had been living in Colombia. He had been told that he would be met upon his arrival in Sydney by other members of the joint criminal enterprise. His flight from South America to Europe had been booked and paid for, as had the cruise. On his arrival at a hotel in Barcelona, the clothes and shoes in which the drug was secreted were already inside the room. He was “suspicious” that the contraband might have been cocaine.

16. The applicant possessed three mobile phones when intercepted by the officers, but the sentencing judge made nothing of that.

17. The following summary of subjective features is also derived from the remarks on sentence.

18. The applicant was 62 years of age when sentenced. His explanation as to motive was that he had been separated from his wife, and needed money because he was going through an expensive divorce.

19. He had the benefit of having no prior convictions.

20. The applicant pleaded guilty to the offence in the Local Court. The sentencing judge accepted that the applicant was remorseful and regretful, based upon the plea of guilty and how the applicant had behaved in custody in this country.

21. On the one hand, the sentencing judge accepted that the applicant had been receiving medication for stomach ulcers and anxiety, and aspirin for heart problems. On the other hand, in the absence of sworn evidence from the applicant that was able to be tested by cross-examination, the sentencing judge was not prepared to take into account the opinion expressed in a psychological report (based on the untested history provided by the applicant) that the criminal conduct of the applicant had been contributed to by “any mental condition, whether depression or otherwise, [that] was present and contributing to his decision to offend in any material way”.

22. The sentencing judge referred to a character reference from the applicant’s son, which spoke of its author having revealed to his father that he was gay, and the negative view that the applicant formed of himself as a result. The sentencing judge spoke also of character references from the brother of the applicant and a longstanding friend, both of whom spoke very highly of him, and of the offence as grossly out of character.

23. There was also a deal of material tendered in the defence case about the life of the applicant in custody in New South Wales, as follows.

24. He was spoken of highly by prison chaplains, and said to be a person with an exceptional work ethic.

25. The sentencing judge also recounted an event in late 2016, during which the applicant spoke of fearing for his safety because of his refusal to assist other prisoners in smuggling items into a maximum security prison. The sentencing judge noted the opinion of the manager of security at that gaol that the request of the applicant that he be placed on protection arose from his refusal to be part of that smuggling operation. Having said that, in the absence of evidence of hardship arising from it, the sentencing judge refused to take into account as a mitigating feature the fact that it seemed that the applicant would spend part at least of his time in prison on protection.

26. Case notes that showed that the applicant had sought psychological help with regard to depression and anxiety whilst in custody were also tendered in the defence case.

27. As for parity with the two co-offenders (of whom Mr Gershuny was sentenced at the same time as the applicant, and Mr Ruiz had been sentenced by the same judge on 9 December 2016), the sentencing judge recorded a concession of counsel for the applicant that, if the diagnoses based on the untested history given to the psychologist were not adopted by the sentencing judge, then counsel could not reasonably assert that the applicant should receive a lesser sentence than Mr Ruiz.

28. Finally, the sentencing judge spoke of the probable effects of incarceration upon the family of the applicant. The sentencing judge spoke of that as “a relevant factor to be taken into account as part of the general mix of subjective features”, but refused to allow it to result in “a substantial reduction”.

Sentence imposed on all three offenders

29. Ultimately, the sentencing judge imposed a head sentence of 9 years 6 months, to commence on 6 November 2015 and to expire on 5 May 2025, with a non-parole period of 4 years 10 months expiring on 5 September 2020.

30. An identical sentence with identical commencement and expiration dates was imposed upon Mr Gershuny. Furthermore, an identical sentence had been imposed the month before upon Mr Ruiz.

Grounds of appeal

31. In support of the application for leave to appeal against sentence, the following grounds were notified and pressed by the unrepresented applicant at the hearing:

Ground 1    The Sentencing Court erred in not taking into consideration some of the salient subjective materials and factors when imposing the sentence.

Ground 2    An error in principal (sic) and in law was made when omitting to take into account the objective factors of the case in regards to parity.

Ground 3   Defence Counsels’ incompetence and failure to discharge their duties resulted in a miscarriage of justice and led to an excessive order.

Ground 4   The Sentencing Court erred in the exercise of his discretions when determining the head sentence resulting in a harsher sentence than merited.

32. Each ground was supported by extensive written submissions. At the hearing, few oral submissions were made by the applicant.

Ground 1    The Sentencing Court erred in not taking into consideration some of the salient subjective materials and factors when imposing the sentence.

33. In written submissions, the complaint was that psychological problems had played a significant part in the offence, and had not been given “adequate consideration”, and were “not at all submitted” during the proceedings on sentence. The expensive divorce and the revelation that the applicant’s son was gay were both emphasised. It was said that the applicant had suffered a “severe nervous and psychological breakdown”. The applicant also wrote that, in custody, he had been diagnosed with “anxiety and severe depression”, and medicated accordingly, as shown by medical records. The applicant sought to rely upon all of these matters as fresh evidence.

34. The applicant re-emphasised in writing that, because of the incident in October 2016, he was placed on protection and disruptively moved from one gaol to another.

35. He also asserted that he should have been given a discount for having “facilitated the course of justice”, it seems on the basis of his plea of guilty and his readiness to engage in a recorded interview with the Australian Federal Police.

36. He spoke of himself as nothing more than a courier in the attempted importation.

37. He also complained of having written “an apology letter expressing my genuine and heartfelt contrition” that defence counsel had not tendered in evidence.

38. Turning to my opinion of the proposition that the sentencing judge failed to take into account relevant mitigating features, none of the complaints made by the applicant in support of this ground has merit, for the following reasons.

39. First, the sentencing judge accepted the emotional disturbance experienced by the applicant as a result of the revelation of the sexuality of his son. His Honour also accepted the proposition that the applicant was a mature man of prior good character. In my opinion, the findings in the remarks on sentence were generally quite favourable to the applicant.

40. Secondly, the defence team qualified a forensic psychologist to provide a detailed report about all aspects of the life history and state of mind of the applicant. It was duly tendered in evidence. True it is that the sentencing judge approached it with caution, but that was nothing to do with its provenance being from a forensic psychologist who had been qualified for the purposes of litigation, as opposed to a treating medical professional within Justice Health. Rather, it was to do with the fact that the applicant did not give evidence on sentence. In my experience, there are very often sound reasons for that tactical decision to be made. And in any event, as I have recounted, defence counsel did indeed also tender case notes that spoke of the psychological difficulties for which the applicant had sought help in custody.

41. Thirdly, it is true that the sentencing judge was not prepared to take into account time served on protection, in the absence of evidence that that status would be more onerous than being incarcerated subject to main discipline, and in the absence of a satisfaction that that status would continue indefinitely. But that was not a rejection of the version of events of the applicant about his refusal to take part in smuggling items into the gaol; rather, it was a reflection not only of the fact that it is sometimes difficult to demonstrate that protection is indeed more onerous for a particular prisoner than main discipline, but also of the fact that it is not always possible to predict whether a prisoner will remain on protection into the future after sentence has been imposed.

42. Fourthly, it is true that, in the remarks on sentence with regard to the applicant, the sentencing judge did not speak explicitly of a discount for his readiness to facilitate the course of justice. But one can infer without difficulty that such a discount was indeed applied, for the following reasons.

43. First, in other parts of the same remarks on sentence pertaining to the other offender sentenced at the same time, Mr Gershuny, his Honour spoke explicitly of “recognising that a discount is appropriate for the demonstration of genuine remorse, acceptance of responsibility and a willingness to facilitate the course of justice”.

44. Secondly, it is clear from the shared remarks on sentence that the sentencing judge generally avoided fruitless repetition of matters that applied to both offenders.

45. Thirdly, in the remarks on sentence of Mr Ruiz, which took place in the preceding month, the same sentencing judge had said,

“I must take into account but not in a way in which the New South Wales Courts do so, the fact that he pleaded guilty at the earliest possible opportunity. In my view his willingness to assist the administration of justice by that early plea, notwithstanding that it was ultimately in the face of what was a strong Crown case, entitles him to a discount of 25% on the term.”

46. It will be recalled that an identical sentence was imposed on all three offenders. I shall explain in more detail when I discuss the assertion of erroneous disparity why I consider that the objective and subjective cases of all of them were very similar indeed.

47. In all of those circumstances, I do not accept the proposition that the discount in question was given to Mr Gershuny and Mr Ruiz, but not to Mr Diaz. I think that one can readily infer that the applicant received exactly the same discount of 25% that Mr Ruiz had recently received, and that Mr Gershuny was simultaneously receiving.

48. Returning to my analysis of the ground, fifthly and finally, even accepting the proposition that “an apology letter” had been written by the applicant, any decision of defence counsel not to tender such a document cannot be easily impugned. That is because in the absence of an assessment of an offender’s demeanour in the witness box and cross-examination, there can be real questions about the sincerity and provenance of such documents. In my opinion, such untested documents are often unpersuasive; indeed, they can sometimes do more harm than good in proceedings on sentence.

49. I would not uphold ground 1.

Ground 2    An error in principal (sic) and in law was made when omitting to take into account the objective factors of the case in regards to parity.

50. I understood this ground to be a complaint that the applicant received an identical sentence to that imposed on the two other men, and that in fact he should have received a shorter sentence than both of them.

51. The proposition was developed in writing by way of an assertion that the applicant should not have been “arbitrarily put in the same category and degree of offending” as the two other offenders. It was also said that there were important differences

“such as remorse, subjective features, low risk of re-offending and duress for one, as well as prior conviction, non-assistance to the Authorities and lack of credibility in the statements for the others two offenders, the imposition of parity for all leave an answerable question as to procedural fairness.”

52. Turning to my opinion of this ground, as I have said, the same judge sentenced all three offenders. They each objectively did the same thing: attempting to bring very similar quantities of cocaine into this country at the behest of the same criminal organisation. They attempted to do so by way of the same modus operandi, were to be paid for it, and incidentally enjoyed an extended ocean cruise at the same time.

53. Furthermore, there were significant subjective factors shared by the three of them: their age (62 (Mr Diaz), 50 (Mr Gershuny) and 49 (Mr Ruiz)); their early guilty pleas; their lack of a criminal record (with the exception of Mr Gershuny, who disclosed to the sentencing judge that he had a conviction in the United States for dealing cannabis 20 years ago, and for which he was sentenced to home detention for six months); the circumstances that had led them to engage in this serious offending (needing money as a result of an expensive divorce (Mr Diaz), needing to repay debtors after harm was threatened to his daughter (Mr Gershuny), and needing clearance of a gambling debt (Mr Ruiz)); the significant isolation that each of them would experience serving a sentence in New South Wales; the very good progress that each of them had made nevertheless whilst in custody; and the guardedly favourable findings made by the sentencing judge about the future of each of them.

52. It is also not to be forgotten in assessing this ground that, as against the (fulfilled) possibility that the sentencing judge would not act upon the unverified history given to the psychologist, counsel for the applicant had explicitly conceded that there should not be a distinction in the length of sentence between the three offenders.

53. In all the circumstances, in my opinion it was well open to the exercise of discretion by the sentencing judge to impose identical sentences on these three men. I do not accept that the fact that the sentencing judge did so can give rise to a justifiable sense of grievance on the part of the applicant.

54. I would reject ground 2.

Ground 3   Defence Counsels’ incompetence and failure to discharge their duties resulted in a miscarriage of justice and led to an excessive order.

57. In summary, the written submissions in support of this ground assert a number of failings on the part of counsel who appeared on sentence, and his instructing solicitor.

58. For example, they claim that that there was evidence available to the defence legal team that being on protection was more onerous than being subject to normal discipline.

59. There was also complaint about the conduct of the “plea negotiation”.

60. The solicitor and counsel were generally accused of “lack of confidence, carelessness and incompetence”. It was said that they had “displayed an evident lack of interest in my case”. It was also said that there had been a failure “to gather and submit to the Court all the evidence despite having had ample time to do so.”

61. Finally it was said that the state of health of the applicant at the time meant that the proceedings on sentence should have been adjourned to a later date.

62. Turning to my opinion of this ground, I consider that it has no merit, for the following reasons.

63. First, the defence exhibits tendered on sentence, the written submissions of counsel who appeared on sentence, and the transcript of the proceedings on sentence, including oral submissions, in combination show that the plea in mitigation was made in a competent and entirely orthodox way.

64. Secondly, the transcript shows that on 9 December 2016, when the matter was originally listed for sentence before the sentencing judge, defence counsel explained that further evidence in mitigation was required, and successfully applied for an adjournment for many weeks until 27 January 2017 (as it happens, according to the transcript a date that did not entirely suit defence counsel personally). In other words, there is no suggestion of the matter being rushed, or being proceeded with when evidence was lacking.

65. Thirdly, both solicitor and counsel who had appeared for the applicant swore affidavits denying that they had been incompetent or dilatory in the representation of the applicant. Those affidavits were relied upon by the Crown, and the two deponents were cross-examined by the applicant himself in this Court. None of the cross-examination bore any fruit; on the contrary, it more than once confirmed the impression that one has from the documents that a perfectly competent job had been done by both of them on behalf of the applicant.

66. Fourthly, during the same process, the complaints of the applicant devolved into such matters as whether or not, on occasions, the principal solicitor did not attend conferences or the like, but an employed solicitor was there in his stead. But such matters are neither here nor there in the assessment of whether error has been established in the sentence. Furthermore, I think that the way the applicant presented this ground orally in this Court gave rise to an impression of irrational querulousness on his part, not substantive grievance.

67. Fifthly and finally, with the benefit of hindsight any person can think of ways in which any human endeavour undertaken by another person might have been undertaken better. But the mere fact that the applicant may be able to do that here is no reason why this ground should be upheld.

68. I would not uphold this ground.

Ground 4   The Sentencing Court erred in the exercise of his discretions when determining the head sentence resulting in a harsher sentence than merited.

69. I understand this complaint to be that the sentence actually imposed was manifestly excessive. In written submissions, the applicant emphasised his early plea of guilty. He accepted that he had been “charged with a serious offence”, but also spoke of a strong subjective case. He spoke of his genuine contrition, and returned to the theme of having facilitated the course of justice. He submitted that a discount for contrition “should be separately reflected”. He suggested that the absence of oral evidence in support of the history given to the psychologist was not the reason why the sentencing judge was cautious about ascribing the offending to psychological factors; rather, he returned to the theme of asserted incompetence on the part of counsel.

70. As for my opinion of this ground, which seemed only to impugn the head sentence, the offence carried a maximum penalty of life imprisonment. In accordance with my analysis of the discount implicitly provided, the starting point of the head sentence was imprisonment for 12 years 8 months. The amount of pure cocaine was very substantial, and well beyond the “cut-off point” of a commercial quantity of 2 kg. It was self-evidently a very valuable piece of contraband. Although in one sense the applicant could be characterised as having been a courier, the applicant was not one whose criminality was confined to a plane journey of 48 hours or less: it was extended. The applicant was trusted by the members of the enterprise over a significant period. The operation as a whole was obviously sophisticated and well-funded. The sum that was to be paid to the applicant was substantial, and on his own admission the motivation for the commission of the offence was simply money. His subjective case, whilst significant, was hardly exceptional. Finally, the sentence actually imposed of a head sentence of 9 years 6 months with a non-parole period of 4 years 10 months does not strike me as palpably wrong, in the sense discussed by Gleeson CJ and Hayne J in Dinsdale The Queen (2000) 202 CLR 321; [2000] HCA 54 at [10].

71. I would not uphold this ground.

“Xiao error”?

72. In short, I would not uphold any ground of appeal explicitly relied upon by the applicant.

73. Separately, although it was not pleaded as a ground of appeal by the unrepresented applicant, I turn to discuss the fact that the applicant, (in common with the other two offenders), was sentenced a little over a year before the decision of this Court in Xiao v R was delivered on 5 February 2018. I have considered whether there should be intervention and resentence arising from what flows from that chronology in any event, on the basis that the applicant did not receive a utilitarian discount for his plea of guilty in the Local Court on his sentence for this Commonwealth offence.

74. My analysis of the question is as follows, partly in conformity with the written and oral submissions made by the Crown about the question in this Court.

75. First, it is true that the sentencing judge did not provide a discount for the utilitarian value of the early plea, in accordance with the reformulation of approach in Xiao v R. Entirely as one would expect, the remarks on sentence of his Honour delivered in early 2017 were in accordance with the then-understanding of sentencing in Commonwealth matters.

76. As I have explained above, however, I am confident that, in imposing a sentence that was identical with the sentence imposed on Mr Gershuny, and that had been imposed on Mr Ruiz, the sentencing judge did give a discount of 25% for the “facilitation of justice” to the applicant.

77. Furthermore, the discount that was provided derived from the plea of guilty that was entered by the applicant, and its timing; the contrast is simply between, on the one hand, a discount having been provided on the “subjective” basis of a readiness to facilitate the administration of justice, and, on the other hand, the “objective” basis of the utilitarian value of the plea of guilty.

78. In short, the discount that was explicitly given to Mr Ruiz and Mr Gershuny, and implicitly given to the applicant, was indeed given for the wrong reason. Still and all, it was arguably as it happens the right discount. Furthermore, it was derived from the entry of an early plea. If the discount had been provided for the utilitarian value of the plea of guilty, the discount would in all likelihood have been 25% in any event.

79. In those circumstances, does the error that occurred here call for resentence? On the one hand, one could posit that the applicant did receive a discount arising from his early plea of guilty; the only error is with regard to a shade of meaning as to why.

80. On the other hand, in Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42], the plurality spoke of errors that require consideration of resentence as being those that “vitiate[d]” the exercise of the sentencing discretion. Basten JA in Newman (a pseudonym) v R [2019] NSWCCA 157 at [11]-[13] recently spoke of the task of this Court as being assessment of the “capacity of the error” to influence the outcome, and suggested that the concept of “materiality” is “best avoided” in this context. Approaching the issue by way of a negative formulation, in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [66] Bathurst CJ spoke of errors that do not require consideration of resentence as being those that are not “connected with the sentencing process or did not affect the sentencing discretion”.

81. In my opinion, the Xiao error that I have identified cannot be said to fit comfortably within any of the above descriptions of errors that do not require consideration of resentence, for the following reasons.

82. First, it can hardly be equated to, for example, an arithmetical error with regard to a backdate that can be thought of as severable and discrete from the sentencing discretion. It is to do with sentencing principle, not a mechanistic matter.

83. Secondly, whilst it is true that a discount for the facilitation of justice and a discount for utilitarian value are both ultimately derived from the entry of a plea of guilty by an offender, they are conceptually separate. By that I mean, although both are usually thought of as subjective matters pertaining to the offender and not to his or her offence, the former is surely more “subjective” in focus, and the latter more “objective”.

84. Thirdly, there is an important practical difference between them: with regard to the latter, the strength of the Crown case is irrelevant; with regard to the former, it is relevant. In other words, one cannot with confidence simply assume in all cases that a discount given for the facilitation of justice prior to Xiao v R can be simply transmuted into a discount for the utilitarian value of a plea of guilty.

85. Fourthly, this Court in similar matters has proceeded to the question of resentence without demur when the only error has been Xiao error, including when an explicit arithmetical discount for the facilitation of justice had been provided; for a recent example, see Obiekwe v R [2018] NSWCCA 55.

86. Fifthly and finally, I think that, if there be any question about the matter, one should be cautious about classifying an error readily able to be demonstrated in the remarks on sentence as being of a kind that disentitles the offender to consideration of resentence by this Court.

87. In all the circumstances, I think that the preferable course is to consider resentence, on the basis that Xiao error has been demonstrated in the remarks on sentence.

Resentence

88. I replicate all of the objective and subjective findings made by the sentencing judge. To the extent that it is relied upon by the applicant for this purpose, and assuming (for the sake of argument only) that it is subject to re-agitation, I do not accept that the applicant was suffering from a nervous breakdown when, over an extended period, he undertook all of the steps recounted above necessary to the attempted importation.

89. With one exception, I do not take into account on resentence any of the other materials relied upon by the applicant with regard to his various grounds, because I believe that none of them substantively post-dates the imposition of sentence: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [11]. The exception is the proposition that the applicant was, after the imposition of sentence in January 2017, on protection for a period of some months until June 2017.

90. In considering resentence, I have had recourse to statistics maintained by the Judicial Commission of New South Wales, the Commonwealth Sentencing Database maintained by the National Judicial College of Australia, a table of sentences for the offence maintained by the New South Wales Public Defenders, and the conspectus of sentences imposed at first instance and by intermediate courts of criminal appeal throughout Australia to be found in the decision of DPP (Cth) v Masange; DPP (Cth) v Kachunga [2017] VSCA 204 commencing at [104].

91. Exercising the sentencing discretion afresh, I would adopt a starting point head sentence of imprisonment for 12 years. I would apply a discount of 25% to that starting point for the utilitarian value of the plea of guilty, arriving at a head sentence of 9 years. As for the non-parole period, on resentence I would impose a minimum period of incarceration of 4 years 6 months. The backdate should be maintained.

92. The result is that, in my opinion, the sentence imposed at first instance should be quashed, and replaced by a sentence with a slightly shorter head sentence and non-parole period.

Proposed orders

93. In accordance with the above analysis, I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal upheld.

3. The sentence imposed by M L Williams SC DCJ on 27 January 2017 is quashed.

4. The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non-parole period of 4 years 6 months, expiring on 5 May 2020.

94. LONERGAN J: I have had the advantage of reading the judgments of Button J and Gleeson JA in draft.

95. I agree with Button J and Gleeson JA that the four grounds of appeal advanced by the applicant are without merit.

96. I agree with Button J and Gleeson JA that there is error in the way in which s 16A(2)(g) of the Crimes Act1914 (Cth) was applied given what this Court said in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.

97. I note that the decision in Xiao was delivered after the sentencing judge gave his decision.

98. I agree with the sentence and the orders proposed by Button J for the reasons given by his Honour.

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Decision last updated: 13 September 2019