Garcia-Godos v R - [2021] NSWCCA 229

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Garcia-Godos v R [2021] NSWCCA 229
Hearing dates: 3 September 2021
Decision date: 24 September 2021
Before: Simpson AJA at [1]; Adamson J at [30]; Lonergan J at [97]
Decision:
(1)   Extend the time within which the applicant is to file an application for leave to appeal to 12 April 2021.
(2)   Grant leave to appeal.
(3)   Dismiss the appeal.

Catchwords:
CRIME — Appeals — Application for extension of time for leave to appeal against sentence not opposed by Crown —Sentencing judge failed to take into account utilitarian value of the plea of guilty — Correctness of Diaz v R [2019] NSWCCA 216 not in issue as Crown conceded (based on Diaz v R) that re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 was required even where the only error is a “Xiao error” and there is no challenge to the percentage discounts for the pleas of guilty — Not satisfied that any lesser overall sentence or non-parole period is warranted — Appeal dismissed
CRIMINAL PROCEDURE — Sentencing —Sentencing judge questioned the Crown about the appropriateness of a particular sentence — Consideration of the ambit of the prohibition in Barbaro v The Queen — no breach of prohibition established

Legislation Cited:
Crimes Act 1914 (Cth), s 16BA
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44
Criminal Code Act 1995 (Cth), ss 11.2, 11.5, 305.3, 307.1, 400.4

Cases Cited:
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Diaz v R [2019] NSWCCA 216
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
HilivThe Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Karan v R [2013] NSWCCA 53
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Maldonado v R [2009] NSWCCA 189
Martin v R [2016] NSWCCA 104
Powerv The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Dashti [2016] NSWCCA 251
R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458
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: Luis Garcia-Godos (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Woods / W Evatt (Applicant)
B Anniwell (Respondent)
Solicitors:
Longton Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2010/91208
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

24 November 2016

Before:

Madgwick QC ADCJ

File Number(s):

2010/91208

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Adamson J. I agree with the orders proposed by her Honour. I wish to…

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.

Keep reading for free

Create a free CaseChat account to read Garcia-Godos v R and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWCCA 229
Decision Date: 24 September 2021

CaseChat Overview and Summary

The case of Garcia-Godos v R involved an appeal against a sentence imposed by the Supreme Court of New South Wales. The appellant, Garcia-Godos, sought an extension of time for leave to appeal against the sentence, which was not opposed by the Crown. The core issue in this case was whether the sentencing judge failed to adequately consider the utilitarian value of Garcia-Godos' plea of guilty. The Crown conceded, based on the authority of Diaz v R, that a re-sentencing in line with Kentwell v The Queen was necessary, even in the absence of a challenge to the percentage discounts for the pleas of guilty. The court also examined whether the sentencing judge breached the prohibition established in Barbaro v The Queen by questioning the Crown about the appropriateness of a particular sentence.

The court found that the sentencing judge did not take into account the utilitarian value of Garcia-Godos' plea of guilty, thus necessitating a re-sentencing. The court was satisfied that the error was akin to a “Xiao error” and did not warrant any lesser overall sentence or non-parole period. The appeal was ultimately dismissed, as the court was not convinced that a lesser sentence was appropriate. The court also concluded that there was no breach of the prohibition in Barbaro v The Queen, as the sentencing judge's inquiry to the Crown was not an improper questioning of the appropriateness of the sentence.

Orders