Estevez v The Queen - [2020] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Estevez v R [2020] NSWCCA 184
Hearing dates: 16 June 2020
Date of orders: 31 July 2020
Decision date: 31 July 2020
Before: Johnson J at [1];
Wright J at [2];
Wilson J at [60]
Decision:
(1) Extend the time for the filing of the notice of application for leave to appeal to 20 April 2020.
(2) Grant the applicant leave to appeal against sentence.
(3) Allow the appeal against sentence.
(4) Quash the sentence imposed by the District Court on 31 October 2017.
(5) Sentence the applicant to a term of imprisonment of 7 years commencing on 10 November 2016 and expiring on 9 November 2023 with a non-parole period of 4 years 8 months expiring on 9 July 2021.

Catchwords:
CRIMINAL LAW – Sentencing – Appeal against sentence – Where sentence occurred prior to Xiao decision and consequently sentencing judge failed to have regard to utilitarian value of guilty plea – Error in calculation of sentence – Errors conceded – Appeal against sentence allowed – Resentence with 33⅓% discount for plea of guilty and past assistance to law enforcement agencies

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

Cases Cited:
Bae v R [2020] NSWCCA 35
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Barrientos [1999] NSWCCA 1
R v El Hani [2004] NSWCCA 162
R v Vo; R v Tran [2006] NSWCCA 165
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Dennis Jose Estevez (Applicant)
Regina (Crown)
Representation:
Counsel:
N Steel (Applicant)
R Ranken (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2016/337261
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2017] NSWDC 433

Date of Decision:

31 October 2017

Before:

Tupman DCJ

File Number(s):

2016/337261

Judgment

JOHNSON J: I agree with Wright J.
WRIGHT J: The applicant has applied for leave to appeal against the sentence imposed on him by Tupman DCJ on 31 October 2017 in the District Court at Sydney. The applicant requires an extension of time in which to bring his application.
The applicant pleaded guilty in the Local Court to a charge that on 10 November 2016 he imported a commercial quantity, namely 2.5393 kg, of the border controlled drug, cocaine, contrary to s 307.1(1) of the Criminal Code (Cth). He was committed for sentence to the District Court at Sydney. The sentence proceedings were heard on 27 October 2017. On 31 October 2017, the learned sentencing judge imposed a sentence of imprisonment for nine years to date from 10 November 2016 and expire on 9 November 2025 with a non-parole period of six years to expire on 9 November 2022.

Application for leave to appeal and for an extension of time

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Estevez v The Queen

Details

AGLC: Estevez v The Queen [2020] NSWCCA 184
Case: [2020] NSWCCA 184
Decision Date: 31 July 2020

CaseChat Overview and Summary

Estevez was convicted of drug trafficking offences and sentenced to a term of imprisonment. He appealed against the sentence, arguing that it was excessive and that the sentencing judge had failed to properly consider the benefit of his guilty plea and past assistance to law enforcement agencies. The appeal was heard by the Court of Appeal of the Supreme Court of the State of Victoria.

The court was required to consider whether the sentence was appropriate in all the circumstances, having regard to the principles of sentencing set out in the Sentencing Act. The court also had to determine whether the sentencing judge had erred in failing to consider the utilitarian value of Estevez's guilty plea and past assistance to law enforcement agencies. Additionally, the court had to consider whether there was an error in the calculation of the sentence.

The court found that the sentencing judge had indeed failed to properly consider the benefit of Estevez's guilty plea and past assistance to law enforcement agencies, and that there was an error in the calculation of the sentence. The court noted that the sentence occurred prior to the decision in Xiao v The Queen, which clarified the importance of taking into account the utilitarian value of a guilty plea. The court accepted that the errors were significant and that the sentence was therefore excessive. The appeal against sentence was allowed, and Estevez was resentenced with a 33⅓% discount for his plea of guilty and past assistance to law enforcement agencies.

The court ordered that Estevez be resentenced to a term of imprisonment with a 33⅓% discount for his guilty plea and past assistance to law enforcement agencies. The precise details of the new sentence were not specified in the judgment.

Orders