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10
Court of Criminal Appeal 13 September 2019

Diaz v R

[2019] NSWCCA 216

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL SELF REPRESENTED APPLICANT

Citation: Diaz v R [2019] NSWCCA 216
Court: NSW Court of Criminal Appeal
Date: 13 September 2019
Judge(s): Gleeson JA, Button J, Lonergan J

Background

The applicant was one of three men intercepted by Australian Border Force officers in November 2015 aboard a cruise ship off Sydney Heads. Each man was found carrying approximately 3.5 kilograms of pure cocaine concealed in weighted cycling clothing. The applicant, a 62-year-old US citizen living in Colombia, admitted he was to receive US$10,000 for importing the drugs and acknowledged he was suspicious the items concealed cocaine.

The applicant pleaded guilty in the Local Court in mid-2016. In January 2017, the sentencing judge in the District Court imposed a head sentence of 9 years 6 months with a non-parole period of 4 years 10 months, commencing from the date of arrest. The judge applied a 25% discount described as being for "facilitation of justice" rather than specifically for the utilitarian value of the plea of guilty.

The applicant, unrepresented in the Court of Criminal Appeal, sought leave to appeal against sentence on four grounds. None of those grounds raised the issue that would ultimately determine the outcome of the appeal.

  • Whether the four grounds of appeal advanced by the self-represented applicant had merit
  • Whether the sentencing judge had applied the correct method for discounting a guilty plea in a Commonwealth matter, as required by Xiao v R (2018) 96 NSWLR 1
  • Whether any identified error called for resentencing by the Court of Criminal Appeal
  • What sentence should be imposed on resentence, including the appropriate utilitarian discount for the plea of guilty

Decision

The Court unanimously rejected all four grounds of appeal raised by the applicant, finding each devoid of merit and disposing of them briefly.

Despite no ground expressly raising the point, the Court identified what it described as "Xiao error" on the face of the sentencing remarks. In Xiao v R, the Court of Criminal Appeal held that a sentencing judge is entitled, and in appropriate cases required, to take into account the utilitarian value of a guilty plea as a distinct consideration under s 16A(2)(g) of the Crimes Act 1914 (Cth). The sentencing judge here had framed the 25% discount as one for "facilitation of justice" rather than for the utilitarian value of the plea. The Court noted, fairly to the sentencing judge, that the Xiao decision had been delivered after sentence was imposed. Nonetheless, the error was established.

The Crown had been made aware of the issue and made written and oral submissions on it, so was not taken by surprise. Button J concluded that the error was of a kind that required the Court to exercise the sentencing discretion afresh rather than allow the sentence to stand. Following Kentwell v The Queen (2014) 252 CLR 601, the Court undertook resentencing.

On resentence, Button J adopted a starting-point head sentence of 12 years, then applied a 25% discount for the utilitarian value of the guilty plea, arriving at a head sentence of 9 years. The non-parole period was set at 4 years 6 months. This resulted in a slightly shorter head sentence and non-parole period than those imposed at first instance, with the commencement date unchanged.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal upheld
  • Sentence imposed by M L Williams SC DCJ on 27 January 2017 quashed
  • Applicant resentenced to a head sentence of 9 years commencing 6 November 2015 and expiring 5 November 2024, with a non-parole period of 4 years 6 months expiring 5 May 2020

Key Takeaways

  • The Court of Criminal Appeal confirmed that Xiao error can be identified and acted upon even where the applicant has not raised it as a ground of appeal, provided the Crown has had proper notice and an opportunity to address it.
  • Under Xiao v R, sentencing judges in Commonwealth matters must recognise and apply the utilitarian value of a guilty plea as a distinct consideration under s 16A(2)(g) of the Crimes Act 1914 (Cth); framing the discount solely as one for "facilitation of justice" does not satisfy this requirement.
  • A Xiao error in the framing of a guilty plea discount does not automatically lead to a more favourable sentence on appeal; here the Court reached a materially similar, though slightly reduced, outcome after sentencing afresh.
  • Where Xiao error is established, the Court of Criminal Appeal is required to resentence the offender itself, exercising the sentencing discretion afresh and taking care not to be anchored by the original sentence: Kentwell v The Queen.
  • The fact that Xiao was decided after the original sentencing did not prevent the Court from identifying and correcting the error, though the judges acknowledged the sentencing judge could not have been expected to apply a principle not yet established.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.1(1)
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- 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
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Obiekwe v R [2018] NSWCCA 55