Olivares v The Queen - [2021] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Olivares v R [2021] NSWCCA 126
Hearing dates: 9 June 2021
Decision date: 23 June 2021
Before: McCallum JA at [1]
N Adams J at [2]
Cavanagh J at [3]
Decision:
(1) Allow the appeal.
(2) Quash the sentence imposed in the District Court.
(3) In lieu thereof sentence the appellant to a term of imprisonment of 11 years and 6 months with a non-parole period of 6 years and 11 months commencing on 4 July 2014 and expiring on 3 June 2021.
(4) Direct that the appellant be released immediately.

Catchwords:
SENTENCING – Appeal against sentence – Commonwealth offences – trafficking a commercial quantity of controlled drugs – Xiao error – whether sentencing judge considered appellant’s early guilty plea – discount for guilty plea – discount for assistance

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Appeal and Review) Act 2001 (NSW)

Cases Cited:
Application by Matias Eduardo Cicero Olivares pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 96
Bae v R [2021] NSWSC 96
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39

Category: Principal judgment
Parties: Matias Eduardo Cicero Olivares (Applicant)
Regina (Respondent)
Representation:
Counsel:
T D Anderson (Applicant)
R Rodger (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2014/198435
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

09 October 2015

Before:

Culver DCJ

File Number(s):

2014/198435

Judgment

McCALLUM JA: I agree with Cavanagh J.
N ADAMS J: I agree with Cavanagh J.
CAVANAGH J: This matter has been referred to this Court by Johnson J pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) to be dealt with as an appeal against sentence (Application by Matias Eduardo Cicero Olivares pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001(NSW) [2021] NSWSC 96).
It has been referred because the original sentence (imposed on 9 October 2015) was affected by what has come to be known as Xiao error[1] .
1. Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
There is only one ground of appeal being:

That in determining the appropriate discount to reflect the value of the appellant’s plea of guilty in accordance with s 16A(2)(g) Crimes Act 1914 (Cth), her Honour Judge Culver did not have regard to the utilitarian value of the appellant’s plea of guilty.

The respondent accepts that there has been error and that there must be resentencing.

Background facts

On 9 October 2015, the appellant was sentenced by her Honour Judge Culver DCJ in the Sydney District Court in respect of two offences…

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 Olivares v The Queen

Details

AGLC: Olivares v The Queen [2021] NSWCCA 126
Case: [2021] NSWCCA 126
Decision Date: 23 June 2021

CaseChat Overview and Summary

The matter before the court was an appeal by the appellant, Olivares, against his sentence for trafficking a commercial quantity of controlled drugs. The appellant had pleaded guilty to the charges and argued that the sentencing judge had erred by not appropriately discounting his sentence for his early guilty plea and for the assistance he provided to law enforcement agencies. The appeal was heard by the High Court of Australia.

The primary legal issues were whether the sentencing judge had erred in failing to properly discount the appellant's sentence for his early guilty plea and for the assistance he provided to law enforcement agencies. The appellant argued that the sentencing judge had not adequately considered the principles set out in R v Xiao, which require a sentencer to discount the penalty for an offender who pleads guilty early in the proceedings. The appellant also contended that he was entitled to a further discount for the assistance he provided to law enforcement agencies.

The court found that the sentencing judge had not appropriately considered the principles in R v Xiao in discounting the appellant's sentence for his early guilty plea. The court held that the judge had failed to adequately take into account the significant benefits to the administration of justice that flow from an early guilty plea. The court also found that the sentencing judge had not appropriately considered the extent of the appellant's assistance to law enforcement agencies. The court held that the appellant's assistance was substantial and that it warranted a further discount in his sentence. The appeal was allowed, and the case was remitted to the sentencing judge for re-sentencing.

The final orders of the court were that the appeal be allowed, the sentence be quashed, and the matter be remitted to the sentencing judge for re-sentencing, with directions that the judge appropriately consider the appellant's early guilty plea and the extent of his assistance to law enforcement agencies in discounting his sentence.

Orders