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Court of Criminal Appeal 23 June 2021

Olivares v R

[2021] NSWCCA 126

Drugs
SENTENCING APPEAL AGAINST SENTENCE COMMONWEALTH OFFENCE S XIAO ERROR DISCOUNT FOR GUILTY PLEA DISCOUNT FOR ASSISTANCE

Citation: Olivares v R [2021] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 23 June 2021
Judge(s): McCallum JA, N Adams J, Cavanagh J (Cavanagh J delivered the leading judgment)

Background

The appellant, a dual Spanish-Mexican citizen, was arrested in Sydney in July 2014 after police found approximately 7.8 kilograms of methamphetamine concealed in his hotel room bathroom ceiling. He also had approximately AUD$60,000 in cash. The appellant cooperated with police immediately upon arrest, making admissions and identifying the location of the packages before police had found them.

In October 2015, the appellant pleaded guilty in the District Court to trafficking a commercial quantity of methamphetamine and a related money-dealing offence. He was sentenced to 15 years imprisonment for the trafficking offence, with a non-parole period of 9 years and 6 months. An earlier appeal against that sentence on grounds of manifest excess was dismissed in December 2016.

Several years later, a Legal Aid review identified that the original sentence may have been affected by what practitioners now refer to as "Xiao error." In 2020, the appellant applied under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for his case to be referred to the Court of Criminal Appeal, which Johnson J granted. This was the 49th such appeal arising from Xiao error.

  • Whether the original sentencing judge erred by failing to consider the utilitarian value of the appellant's early guilty plea when applying s 16A(2)(g) of the Crimes Act 1914 (Cth)
  • What sentence was appropriate upon resentencing, accounting for the guilty plea discount and any discount for assistance to authorities

Decision

The central issue was uncontested: the original sentencing judge, following what was then accepted authority, had declined to apply a discount based on the utilitarian value of the guilty plea. The judge instead assessed the plea only for its subjective mitigating value, asking whether it demonstrated genuine remorse, acceptance of responsibility, or willingness to facilitate the course of justice. Following the subsequent decision in Xiao v R [2018] NSWCCA 4, this approach was established to be wrong. The respondent conceded the error, and resentencing was required.

On resentencing, Cavanagh J adopted the findings of fact from the original sentencing. The appellant was found to be a trusted participant in an international drug syndicate, though not at its apex. His role was that of a courier and go-between, but one entrusted with a very large quantity of drugs and significant cash. These factors pointed to a serious objective criminality.

On the question of discounts, Cavanagh J held that the appellant was entitled to a combined 15% reduction for his early guilty plea and his assistance to authorities. In arriving at the base sentence before discount, his Honour identified a term of 13 years and 6 months as the appropriate starting point. Applying the 15% discount produced a final sentence of 11 years and 6 months, with a non-parole period fixed at 60% of that term, equating to 6 years and 11 months from 4 July 2014. As the non-parole period had already expired by the time of resentencing, the Court directed the appellant's immediate release.

Orders Made

  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • In lieu thereof, the appellant sentenced to 11 years and 6 months imprisonment, with a non-parole period of 6 years and 11 months, commencing 4 July 2014 and expiring 3 June 2021
  • Appellant to be released immediately

Key Takeaways

  • Following Xiao v R [2018] NSWCCA 4, the utilitarian value of a guilty plea is a permissible and relevant consideration under s 16A(2)(g) of the Crimes Act 1914 (Cth) when sentencing federal offenders. The original approach of confining the plea discount to subjective factors such as remorse was confirmed to be in error.
  • A guilty plea discount for a Commonwealth offence is an objective factor that courts should, where possible, quantify rather than treat as a general, unspecified mitigant.
  • Where Xiao error is established, resentencing is required. The existence of the error does not automatically mean the original sentence was manifestly excessive; it means the sentencing process was flawed, requiring the appeal court to exercise the discretion afresh.
  • Combined discounts for an early guilty plea and assistance to authorities produced a 15% reduction on the base sentence in this case, though the Court's application of that figure turned on the specific facts and should not be read as a fixed benchmark.
  • This decision was the 49th Xiao error appeal identified through a Legal Aid Commission review, illustrating the systemic reach of the Xiao correction across federal sentencing in NSW.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Criminal Code (Cth), ss 302.2(1), 400.9(1A)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 79(1)(b), Part 7

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Application by Matias Eduardo Cicero Olivares pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 96
- Bae v R [2020] NSWCCA 35
- Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70
- Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37