Bathurst CJ; Beazley P; Hoeben CJ at CL; McCallum J; Bellew J.
Decision:
1. Grant the applicant leave to appeal against sentence.
2. Appeal allowed.
3. Quash the sentences imposed on the appellant on 11 March 2016 and in lieu thereof impose the following sentences:
(a) In respect of Charge 1 having regard to the scheduled offence, the appellant is sentenced to a term of imprisonment of 5 years commencing on 12 January 2014 and expiring on 11 January 2019.
(b) In respect of Charge 2 the appellant is sentenced to a term of imprisonment of 5 years and 6 months commencing on 12 July 2015 and expiring on 11 January 2021.
4. In accordance with s 19AB(1) of the Crimes Act 1914, fix a single non-parole period of 4 years and 6 months, such non-parole period will expire on 11 July 2018.
Catchwords:
CRIMINAL LAW – appeal – sentencing – whether error in assessment of objective seriousness of offences – whether error in having regard to certain matters as aggravating features of the offending – whether error in declining to take into account utilitarian value or benefit of the applicant’s guilty pleas notwithstanding that the applicant was being sentenced for federal offences – whether error in not taking into account evidence the applicant would experience more onerous custody by reason of the fact he is a foreign national – whether error in not sentencing in accordance with s 19AB(1) of the Crimes Act 1914 – whether sentences imposed are manifestly excessive – whether justifiable sense of grievance by reason of the sentence imposed upon co-offender
[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.
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AGLC
Xiao v R [2018] NSWCCA 4
Case
[2018] NSWCCA 4
Decision Date
CaseChat Overview and Summary
In the case of Xiao v R, the applicant appealed against his sentence, challenging the objective seriousness of the offences, the court's consideration of aggravating factors, the failure to account for the utilitarian value of his guilty pleas, the impact of his foreign nationality, and the application of section 19AB(1) of the Crimes Act 1914. The applicant argued that the sentences were manifestly excessive and that there was a justifiable sense of grievance due to the disparity in sentencing between him and his co-offender.
The legal issues before the court were whether there was an error in the assessment of the objective seriousness of the offences, whether certain matters were correctly identified as aggravating features, whether the court should have considered the utilitarian value of the applicant's guilty pleas, whether the court should have taken into account the impact of his foreign nationality on his custody experience, whether the court should have applied section 19AB(1) of the Crimes Act 1914, whether the sentences were manifestly excessive, and whether there was a justifiable sense of grievance due to the disparity in sentencing between the applicant and his co-offender.
The court found that there was no error in the assessment of the objective seriousness of the offences or in the identification of aggravating factors. The court also found that there was no error in the court's failure to consider the utilitarian value of the applicant's guilty pleas, as this was not a relevant factor in sentencing for federal offences. The court further found that there was no error in the court's failure to take into account the impact of the applicant's foreign nationality on his custody experience, as this was not a relevant factor in sentencing. The court also found that there was no error in the court's failure to apply section 19AB(1) of the Crimes Act 1914, as this section did not apply to the applicant's case. The court further found that the sentences were not manifestly excessive and that there was no justifiable sense of grievance due to the disparity in sentencing between the applicant and his co-offender.
The applicant's appeal was dismissed, and the sentences imposed by the primary judge were upheld.