AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 8 May 2020

Hijazi v R

[2020] NSWCCA 97

Drugs
CRIMINAL LAW PROPOSED SENTENCING APPEAL UTILITARIAN VALUE OF PLEA XIAO ERROR LACK OF MERITS OF PROPOSED APPEAL LENGTH OF DELAY

Citation: Hijazi v R [2020] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 8 May 2020
Judges: Bell P, Walton J, Johnson J

Background

The applicant had pleaded guilty in April 2016 to a Commonwealth drug offence: attempting to possess a marketable quantity of cocaine (684.8 grams) that had been unlawfully imported into Australia. He was sentenced in April 2017 in the Downing Centre District Court to five years and ten months' imprisonment, with a non-parole period of three years and four months.

At sentencing, the judge applied the then-accepted approach to guilty plea discounts for Commonwealth offences, awarding a 10% discount based on the applicant's acceptance of responsibility and willingness to facilitate the course of justice. The applicant had filed a notice of intention to appeal shortly after sentencing, but did not pursue it after Legal Aid was refused in May 2018, following advice that the appeal had no reasonable prospects of success.

In October 2019, more than two years after sentence was imposed, the applicant filed both an application for leave to appeal and a separate application seeking an extension of time to bring that application. The delay in renewing the appeal was partly attributed to a broader Legal Aid review of sentences potentially affected by subsequent appellate decisions.

  • Whether an extension of time should be granted to allow the applicant to seek leave to appeal against his sentence, more than two years after it was imposed
  • Whether the sentencing judge erred by failing to take into account the utilitarian value of the applicant's guilty plea when sentencing for a Commonwealth offence (so-called "Xiao error")
  • Whether, even if sentencing error was established, the proposed appeal had sufficient prospects of resulting in a lesser sentence to justify granting the extension of time

Decision

The Crown conceded that the sentencing judge had erred by not considering the utilitarian value of the guilty plea. This error arose because the decisions in Xiao v R and Huang v The Queen (which established that failing to account for utilitarian value when sentencing for a Commonwealth offence is an error) had not yet been decided at the time of sentencing. The Court accepted the concession and proceeded on the basis that error was established.

However, the Court emphasised that the presence of error alone does not determine whether an extension of time should be granted. The question is whether the appeal has sufficient merit in the sense that a different, lesser sentence would actually result if the Court resentenced the applicant. On the facts, the Court was not persuaded that resentencing would produce a lesser sentence: even under the correct approach, a 10% discount for the plea could remain appropriate, and the additional factors advanced by the applicant (including delay between plea and sentence, the applicant's minor role, and his subjective circumstances) did not displace that conclusion.

The Court identified two independent reasons for refusing the extension. First, and primarily, the proposed appeal lacked merit because the applicant had no real prospect of obtaining a lesser sentence on resentencing. Second, the overall delay of over two years was substantial, and the explanation offered did not fully account for the gap between Legal Aid's withdrawal of support in May 2018 and the renewed application in October 2019. The public interest in finality of concluded criminal proceedings weighed against granting the extension.

Orders Made

  • Application for extension of time to seek leave to appeal against sentence refused.

Key Takeaways

  • Establishing a conceded sentencing error (here, "Xiao error") is not sufficient on its own to secure an extension of time to appeal: the applicant must also demonstrate a real prospect of obtaining a lesser sentence on resentencing.
  • A 10% plea discount may survive appellate scrutiny even where the original sentencing judge applied the wrong reasoning, if the discount remains appropriate under the correct utilitarian value analysis.
  • Under Huang v The Queen, failing to consider the utilitarian value of a guilty plea when sentencing for a Commonwealth offence constitutes a sentencing error, regardless of the discount actually awarded.
  • The Court of Criminal Appeal weighed competing interests when considering the extension, including the principle of finality in concluded criminal proceedings and the adverse effect on the community of reopening such proceedings.
  • Where an explanation for delay is provided but does not fully account for the entire period, the residual unexplained gap remains a factor weighing against the exercise of the discretion to extend time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3), 10(1)(b)
- Criminal Code Act 1995 (Cth), ss 307.6(1), 11.1(1), 11.2A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth), s 16A(2)(d)

Cases
- Xiao v R (2019) 96 NSWLR 1; [2019] NSWCCA 4
- Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
- Huang v The Queen (2018) 332 FLR 158; [2018] NSWCCA 70
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lepine v R [2017] NSWCCA 83
- Bae v R [2020] NSWCCA 35
- Baladjam v R [2018] NSWCCA 304
- Alpha v R [2015] NSWCCA 225