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Court of Criminal Appeal 24 September 2021

Garcia-Godos v R

[2021] NSWCCA 229

DrugsFraud & dishonesty

Citation: Garcia-Godos v R [2021] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 24 September 2021
Judges: Simpson AJA; Adamson J; Lonergan J

Background

The applicant was convicted of importing a commercial quantity of a border-controlled drug and money laundering offences under the Criminal Code Act 1995 (Cth). He was sentenced in November 2016. The sentencing judge applied discounts for his guilty pleas of 10% (importation) and 25% (money laundering), but did so without reference to the utilitarian value of those pleas.

At the time of sentencing, this approach was consistent with the law as stated in Tyler v R [2007] NSWCCA 247. However, in early 2018, the Court of Criminal Appeal in Xiao v R declared the Tyler principle wrong: the utilitarian value of a plea of guilty is a legitimate factor in quantifying a discount for federal offenders, just as other considerations are.

The applicant sought an extension of time to appeal against sentence, relying on the Xiao error. Critically, he did not challenge the percentage discounts that had been applied. He accepted those figures were correct and asked the Court simply to re-sentence on the same basis, having acknowledged the wrong principle was applied at first instance.

  • Whether the sentencing judge's failure to consider the utilitarian value of the guilty pleas (a "Xiao error") constituted an error requiring the Court of Criminal Appeal to exercise its sentencing discretion afresh
  • Whether such an error causes the sentencing discretion to miscarry under the principles in Kentwell v The Queen, even where no challenge is made to the percentage discounts applied and the applicant endorses the same result on resentencing
  • Whether the sentencing judge breached the prohibition in Barbaro v The Queen by questioning the Crown about the appropriateness of a particular sentence

Decision

Ground 1: The Xiao error and the duty to resentence

The Crown conceded, on the basis of Diaz v R [2019] NSWCCA 216, that the Xiao error required the Court to exercise its sentencing discretion afresh under the Kentwell principles. In Kentwell, the High Court held that where a sentencing judge acts on wrong principle, the Court of Criminal Appeal does not assess the degree to which the error influenced the outcome; the discretion is treated as having miscarried and must be re-exercised. The Court proceeded accordingly, applying the same discounts endorsed by both parties.

Simpson AJA wrote separately to question whether Diaz was correctly decided. Her Honour reasoned that sentencing involves two distinct processes: selecting a starting point and then applying a quantified discount. An error in the discount quantification process does not infect the starting-point determination. On this analysis, a Xiao error of the kind here, where no adverse result flows from the mis-statement of principle, might be the type of limited error that does not vitiate the sentencing discretion under Kentwell. Her Honour noted, however, that the correctness of Diaz was not in issue before the Court, since the Crown had conceded the point, and so the question was left open.

Adamson J, with whom Lonergan J agreed, conducted the resentencing exercise. Taking into account all of the sentencing judge's original findings and additional evidence about the applicant's rehabilitation and conduct in custody, her Honour was not satisfied that any lesser overall sentence or non-parole period was warranted. The appeal was accordingly dismissed.

Ground 2: The Barbaro issue

The applicant argued that the sentencing judge had breached the prohibition in Barbaro v The Queen by inviting the Crown to comment on the appropriateness of a specific sentence. The Court examined the exchanges in question and found no breach of the Barbaro prohibition was established.

Orders Made

  • Time for filing the application for leave to appeal extended to 12 April 2021
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A "Xiao error" (sentencing a federal offender for a guilty plea without considering the utilitarian value of that plea) was treated by the Court, consistently with Diaz v R, as causing the sentencing discretion to miscarry and triggering a duty to resentence, even where the percentage discounts applied were not challenged and were adopted on appeal.
  • Simpson AJA raised a considered, unreserved doubt about whether Diaz is correctly decided, arguing that discount-quantification errors may be a category of error that does not vitiate the sentencing discretion under Kentwell. This question remains open, having not been placed in issue by the parties.
  • Under Kentwell v The Queen, where a sentencing discretion has miscarried, the Court of Criminal Appeal does not assess what influence the error had on the outcome; it re-exercises the discretion independently.
  • In dismissing the appeal, Adamson J confirmed that additional evidence of post-sentence rehabilitation and good prison conduct did not, in the circumstances, justify reducing the sentence already imposed.
  • No breach of the Barbaro prohibition arose from the sentencing judge questioning the Crown about the appropriateness of a particular sentence on the facts of this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44
- Criminal Code Act 1995 (Cth), ss 11.2, 11.5, 305.3, 307.1, 400.4

Cases
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Diaz v R [2019] NSWCCA 216
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Karan v R [2013] NSWCCA 53
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Maldonado v R [2009] NSWCCA 189
- Martin v R [2016] NSWCCA 104
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Dashti [2016] NSWCCA 251
- R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120
- Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4