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Court of Criminal Appeal 7 May 2021

Nicolas v R

[2021] NSWCCA 89

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE COMMONWEALTH OFFENCE CONTROLLED DRUG XIAO ERROR

Citation: Nicolas v R [2021] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 7 May 2021
Judges: McCallum JA, Button J, Ierace J (all agreeing in reasons delivered by Ierace J)

Background

The applicant was sentenced in the District Court in June 2017 after pleading guilty to one count of importing a commercial quantity of methylamphetamine. The offending involved three separate importations from Mexico totalling 20.2 kilograms, concealed in tequila bottles and hollowed-out drill bits. A further charge involving dealing with property suspected of being proceeds of crime (diamonds valued at approximately $102,500, along with casino chips and cash) was taken into account on a schedule.

The applicant entered his guilty plea on 13 November 2015, three days before the scheduled trial commencement. He was sentenced to 15 years imprisonment with a non-parole period of 10 years, backdated to commence on 3 December 2014.

The sole ground of appeal was that the sentencing judge failed to take into account the utilitarian value of the guilty plea, an error of the type identified in the subsequent Court of Criminal Appeal decision in Xiao v R [2018] NSWCCA 4, delivered about eight months after the original sentence. Because the error only became apparent with the publication of Xiao, the applicant also sought leave to appeal out of time.

  • Whether the application for leave to appeal out of time should be granted, given the error only became apparent following the delivery of Xiao in February 2018.
  • Whether the sentencing judge erred by failing to apply a discount for the utilitarian value of the applicant's guilty plea when sentencing for a Commonwealth offence.
  • If error was established, what sentence was appropriate on a resentencing of the applicant.

Decision

The Court granted the extension of time and leave to appeal. The basis for the extension was that the sentencing error only became identifiable after the delivery of Xiao, which clarified that the utilitarian value of a guilty plea must be taken into account when sentencing for Commonwealth offences, just as it is for State offences under the principles established in R v Thomson (2000) 49 NSWLR 383. The Court accepted that this provided sufficient explanation for the delay.

On the substantive error, the Court confirmed that the sentencing judge had not applied any discount for the utilitarian value of the plea. For Commonwealth offences, the court is required under s 16A of the Crimes Act 1914 (Cth) to take into account all relevant matters, and the utilitarian benefit of a plea that saves court time and resources is such a matter. The omission constituted a Xiao error.

The Court then resentenced the applicant. In doing so, it considered the applicant's criminal history (including a prior drug manufacturing conviction in New South Wales and an overseas cocaine conviction), his mental health conditions, his age and physical vulnerability as a prisoner, and his prospects of rehabilitation. The Court noted that Dr Nielssen's evidence established only a qualified causal connection between the applicant's mental health disorders and his offending, which limited the weight those conditions could carry in reducing specific deterrence.

The Court fixed a starting point of 16 years imprisonment, then applied a 10 per cent discount for the utilitarian value of the guilty plea, arriving at a sentence of 14 years and 5 months. This was lower than the original 15-year head sentence. The Court also reduced the non-parole period to 9 years, with a first eligible parole date of 2 December 2023, reflecting modestly improved rehabilitation prospects and the benefit of an extended period of post-release supervision.

Orders Made

  • Application for extension of time to seek leave to appeal against sentence granted.
  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 21 June 2017 set aside.
  • Applicant sentenced to imprisonment of 14 years and 5 months, commencing 3 December 2014 and expiring 2 May 2029, with a non-parole period of 9 years.
  • First eligible for release on parole on 2 December 2023.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Xiao principle applies to Commonwealth drug offences: a sentencing court must take into account the utilitarian value of a guilty plea as a distinct consideration, separate from other mitigating factors such as remorse.
  • An application for leave to appeal out of time may be granted where the relevant sentencing error was not discernible until a subsequent appellate decision clarified the law, even where several years have passed since the original sentence.
  • Under s 16A of the Crimes Act 1914 (Cth), all relevant matters bearing on the appropriate sentence must be considered; the omission of a utilitarian plea discount constitutes an error that can vitiate the original sentence.
  • A qualified or indirect causal connection between an offender's mental health conditions and their offending carries limited weight in reducing the significance of specific deterrence, particularly where the offender has a history of serious drug offending across multiple jurisdictions.
  • Where resentencing occurs following a Xiao error, the Court of Criminal Appeal conducts a fresh sentencing exercise and may take into account changes in the offender's circumstances since the original sentence, including rehabilitation progress and vulnerability in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A
- Criminal Code Act 1995 (Cth), ss 307.1, 311.13, 400.9
- Criminal Appeal Act 1912 (NSW), s 10

Cases:
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Huang v The Queen (2018) 332 FLR 158; [2018] NSWCCA 70
- Abreu v The Queen [2020] NSWCCA 286
- Turnbull v R [2019] NSWCCA 97
- RO v R [2019] NSWCCA 183
- Johnson v R [2017] NSWCCA 53
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Ourdi v R (2009) 193 A Crim R 381; [2009] NSWCCA 46
- Assi v R [2006] NSWCCA 257