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Court of Criminal Appeal 31 July 2020

Estevez v R

[2020] NSWCCA 184

Drugs
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE ERROR IN CALCULATION OF SENTENCE ERRORS CONCEDED APPEAL AGAINST SENTENCE ALLOWED

Citation: Estevez v R [2020] NSWCCA 184
Court: Court of Criminal Appeal, New South Wales
Date: 31 July 2020
Judges: Johnson J, Wright J, Wilson J (all agreeing)

Background

The appellant, a United States citizen, was arrested at Sydney Airport in November 2016 after customs officers discovered approximately 2.5 kg of pure cocaine concealed in his suitcase. WhatsApp messages retrieved from his phone indicated he had been planning the importation for at least three weeks and was a willing participant, not a last-minute courier. He pleaded guilty in the Local Court to importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code (Cth), and was committed to the District Court for sentencing.

In October 2017, the District Court sentenced the appellant to nine years' imprisonment with a non-parole period of six years. The sentencing judge found the offence was slightly below the mid-range of objective seriousness and accepted that the appellant had acted as a courier, though not a mere uninformed one.

The appellant filed an application for leave to appeal in April 2020, well outside the ordinary time limit. He sought an extension of time, which the Crown did not oppose.

  • Whether the sentencing judge fell into error by failing to have regard to the utilitarian value of the guilty plea when applying a discount under s 16A(2)(g) of the Crimes Act 1914 (Cth), consistent with the principles in Xiao v R (2018).
  • Whether the sentencing judge made a mathematical error by applying a discount of only 25% when she had stated that the applicable range was 30 to 35% for the plea of guilty and the appellant's past assistance to law enforcement.
  • Whether an extension of time for filing the appeal should be granted.

Decision

The Crown conceded both grounds of appeal. The sentencing proceedings had occurred before the decision in Xiao v R [2018] NSWCCA 4, which clarified that, when sentencing for Commonwealth offences, a court must have regard to the utilitarian value of a guilty plea as a distinct consideration. The sentencing judge had not done so, which constituted error.

The second ground was also made out. The sentencing judge indicated a discount in the range of 30 to 35% was appropriate, but the sentence she ultimately imposed reflected only a 25% reduction. The Court accepted that this inconsistency amounted to a further identifiable error in the sentencing exercise.

The Court of Criminal Appeal granted the extension of time, satisfied that the interests of justice required it, given the nature of the errors and the supporting affidavit evidence. Leave to appeal was granted and the appeal allowed.

On resentencing, Wright J applied a discount of 33⅓% for the plea of guilty and past assistance to law enforcement. The Court identified a starting point of 10 years and 6 months, producing a fresh sentence of 7 years' imprisonment with a non-parole period of 4 years and 8 months, both commencing from the original date of custody on 10 November 2016. The Court also noted the appellant's improved rehabilitation prospects, genuine remorse, and likely drug abstinence while in custody.

Orders Made

  • Time extended for filing the notice of application for leave to appeal to 20 April 2020.
  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Sentence imposed by the District Court on 31 October 2017 quashed.
  • Appellant resentenced to 7 years' imprisonment commencing 10 November 2016, expiring 9 November 2023, with a non-parole period of 4 years and 8 months expiring 9 July 2021.

Key Takeaways

  • A sentence imposed before Xiao v R [2018] NSWCCA 4 may be vulnerable to appeal where the sentencing court failed to separately consider the utilitarian value of a guilty plea as required for Commonwealth offences under s 16A(2)(g) of the Crimes Act 1914 (Cth).
  • Where a sentencing judge articulates a discount range but the final calculation does not reflect that range, an identifiable mathematical error arises that can ground a successful appeal.
  • The Court of Criminal Appeal confirmed that both errors were conceded by the Crown, reinforcing that Xiao error and arithmetic inconsistency each independently warrant appellate intervention in sentencing.
  • Extending time for a sentence appeal will be granted where the interests of justice require it, particularly when the grounds involve errors that were not apparent until a later appellate decision clarified the law.
  • On resentencing, the Court applied a discount of 33⅓% for plea and assistance, producing a meaningfully shorter sentence than the original, despite accepting the objective seriousness and the appellant's willing participation in the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.1(1)
- Crimes Act 1914 (Cth), ss 16A, 16A(2)(g), 16F
- Criminal Appeal Act 1912 (NSW)

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