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Supreme Court 20 November 2020

Aboud v R

[2020] NSWSC 1648

Sexual offences
CRIMINAL LAW APPLICATION FOR INQUIRY INTO SENTENCE APPEAL RIGHTS EXHAUSTED CONSIDERATION OF POSSIBLE XIAO ERROR REFERRAL MADE

Citation: Aboud v R [2020] NSWSC 1648
Court: Supreme Court of New South Wales
Date: 20 November 2020
Judge(s): Button J

Background

The applicant had pleaded guilty in the Local Court at Lismore in March 2016 to six federal offences: four charges of using a carriage service to groom a person under 16 years of age for sex, one charge of using a carriage service to procure a person under 16 for sex, and one charge of using a carriage service to menace, harass or offend. The conduct involved the applicant adopting false identities on Facebook between January and July 2011 to contact children, elicit sexually explicit photographs, and threaten to expose victims to their parents if they refused to comply.

In July 2016, the District Court sentenced the applicant to seven years' imprisonment with a non-parole period of five years and three months. The applicant subsequently sought leave to appeal in the Court of Criminal Appeal on three grounds, none of which concerned the treatment of his guilty pleas. All three grounds were dismissed.

The applicant then brought this application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his sentence. His appeal rights to the Court of Criminal Appeal had otherwise been exhausted. The application rested on a single point: that the sentencing judge, and the Court of Criminal Appeal on the earlier appeal, had not applied the utilitarian discount for a guilty plea that is now required when sentencing for Commonwealth offences, following the decision in Xiao v R [2018] NSWCCA 4.

  • Whether the sentencing judge erred by failing to apply a utilitarian discount for the applicant's guilty pleas when sentencing for Commonwealth offences, in light of the principles established in Xiao v R.
  • Whether the statutory gateway test under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW) was satisfied, namely whether there appeared to be a doubt or question as to any mitigating circumstances in the case.
  • Whether the matter should be referred to the Court of Criminal Appeal to be dealt with as a further appeal against sentence.

Decision

Button J identified the central issue as a potential "Xiao error." The decision in Xiao v R established that a sentencing court is entitled to take into account the utilitarian value of a guilty plea when sentencing for Commonwealth offences. Prior to Xiao, this was not the accepted approach, and neither the sentencing judge in 2016 nor the Court of Criminal Appeal in its subsequent analysis had considered the question.

Button J found that the commission of Xiao error was, at the very least, "very arguable." Although the sentencing judge had acknowledged the guilty pleas as expressions of remorse and a willingness to facilitate justice, no separate utilitarian discount had been applied. The earlier appeal had not raised or resolved this issue, and the applicant's conventional appeal rights were now exhausted.

The Commonwealth Director of Public Prosecutions did not oppose the referral. Button J was satisfied that there appeared to be a doubt or question about a mitigating circumstance in the matter, meeting the statutory threshold under s 79(2) of the Act. Referral to the Court of Criminal Appeal was characterised as the most efficient means of resolving the question authoritatively.

Orders Made

  • Pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).

Key Takeaways

  • The decision in Xiao v R [2018] NSWCCA 4 established that a utilitarian discount for a guilty plea must be considered when sentencing for Commonwealth offences, a principle that did not form part of the accepted approach before that decision.
  • Where sentencing for Commonwealth offences pre-dated Xiao, a failure to apply a utilitarian guilty plea discount may constitute a "Xiao error" capable of founding an application for inquiry into sentence under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW).
  • Under s 79(2) of the Act, the threshold for referral is whether there "appears to be" a doubt or question as to any mitigating circumstance. Button J found that an arguable Xiao error was sufficient to satisfy that test.
  • A Part 7 inquiry application can provide a remedy where conventional appeal rights have been exhausted and a subsequent change in the law reveals an arguably disadvantageous error in the original sentencing.
  • Acknowledgment of a guilty plea as an expression of remorse or as facilitating justice does not, of itself, satisfy the requirement to consider the separate utilitarian value of that plea for Commonwealth offences.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 79(1)(b) and 79(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1
- Aboud v R [2017] NSWCCA 140
- Diaz v R [2019] NSWCCA 216