CRIMINAL LAW - application for referral of case to Court of Criminal Appeal to be dealt with as sentence appeal - Commonwealth drug trafficking offence and money laundering offence - whether doubt or question as to mitigating circumstance - approach on sentence to utilitarian value of guilty pleas - applicant sentenced before decision in Xiao v R - order for referral made

The Present Application

1. The Applicant seeks referral of the whole of his case to the Court of Criminal Appeal under s.79(1)(b) CAR Act upon the basis that the sentencing Judge did not have regard to the utilitarian value of his guilty pleas in accordance with the principles stated subsequently by the Court of Criminal Appeal in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.
2. In making this application, the Applicant seeks to follow the pathway adopted in Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 1413, which saw referral to the Court of Criminal Appeal which upheld the appeal and resentenced Mr Bae: Bae v R [2020] NSWCCA 35.
3. The Commonwealth Director of Public Prosecutions did not seek to make any submissions with respect to the application. It remains a matter for the Court to determine whether an order for referral should be made.
4. An application under s.78 CAR Act is not a judicial proceeding and, in determining the application, the Court exercises administrative power: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [124].
5. On a s.78 application, the question is whether the Applicant can satisfy the s.79(2) gateway test of whether there "appears" to be a doubt or question (in contrast as to whether there is actually a doubt or question) as to any mitigating circumstance which extends to an error of law in the sentencing process: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 at [52]; Buttrose v Attorney General of NSW (2015) 324 ALR 562; [2015] NSWCA 221 at [16]-[17], [26].
6. An inquiry may not be directed under s.79(1)(a) CAR Act with respect to Commonwealth offences: Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143; Application of Chidiac [2015] NSWSC 157 at [19]-[20].
7. Although direction of an inquiry is not open, there is no impediment to the Court referring a case to the Court of Criminal Appeal under s.79(1)(b) CAR Act to be dealt with as an appeal. That is the order which the Applicant seeks in this case.

Approach to the Applicant's Guilty Pleas on Sentence in the District Court

1. The Applicant was sentenced in the Sydney District Court on 9 October 2015. In sentencing the Applicant, the sentencing Judge had regard to principles applicable to an offender's pleas of guilty to Commonwealth offences in accordance with the law as it stood prior to the decision of the Court of Criminal Appeal in Xiao v R.
2. The Applicant did not enter his guilty pleas until the day after the trial was due to commence, but had not in fact commenced.
3. In accordance with usual practice at that time, the Crown made submissions at the sentencing hearing with respect to the Applicant's pleas of guilty by reference to decisions including Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247. The Crown said: 1. R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 cannot apply to federal offences; 2. it was impermissible to give a discount to a federal offender upon the objective basis that the plea has saved the community the expense of a contested hearing, meaning that the utilitarian discount of 10% to 25% for a guilty plea had no application to federal sentencing; 3. a discount for a guilty plea could only be established if the offender can establish on the balance of probabilities that the plea demonstrates genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice; 4. the timing of the plea is a significant factor and whether it was entered at the first reasonable opportunity; 5. the strength of the Crown case may be taken into account in assessing the subjective value of the plea and a court could assess whether the plea was motivated by the willingness to facilitate the course of justice or simply a recognition of the inevitable; and 6. it was unnecessary to quantify the level of discount for the plea of guilty.
4. When sentencing the Applicant, her Honour acted on the Crown submissions and said with respect to the pleas of guilty (ROS12-13): "HER HONOUR: A Federal offender can obtain a discount for a guilty plea if he or she establishes on the balance of probabilities that the plea and any associated evidence demonstrates the subjective mitigation of genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice. In this particular case it is argued on behalf of the offender that the guilty plea does demonstrate his remorse and acceptance of responsibility. Whilst the guilty plea alone given at that late date might have been seen as having been entered in response to an overwhelming prosecution case, this matter does involve immediate admissions made by the offender to the arresting police and the participation in a record of interview in which further admissions were made. Those matters would have to be seen as assisting the offender in establishing that there was at that earlier stage an acceptance in part of responsibility and, to an extent, a willingness to facilitate the course of investigation and justice. The fact that the plea of guilty was entered at such a late stage is a matter which, in my view, does not resile from that finding that there was an acceptance of responsibility. I take into account in the offender's favour his plea of guilty."
5. No quantified discount was allowed for the Applicant's pleas of guilty.
6. In Cicero Olivares v R, the Court of Criminal Appeal said at [15]: "Her Honour expressly took into account all of the objective and subjective matters referred to above, as required by s 16A of the Crimes Act 1914 (Cth). Also in accordance with that section her Honour accepted that the applicant had shown contrition for his offences, that he had made ready admissions to police at an early stage of their investigations and that he had pleaded guilty on the day after his trial had been listed to commence."

The Principles in Xiao v R

1. A number of decisions of the Court of Criminal Appeal have addressed the question of Xiao v R error.
2. In Bae v R, the Court said at [53]-[57]: "53 The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). 54 Counsel for the Appellant and the Crown both accepted at the hearing in this Court that the principles in R v Borkowski provided assistance in assessing the utilitarian value of a guilty plea for a Commonwealth offence (T2-3, 5, 11, 6 February 2020). 55 It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender's favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations. 56 As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]: 'Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.' 57 The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender."
3. What was said in Bae v R has been applied in subsequent decisions including Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [60] and Betka v R [2020] NSWCCA 191 at [57]-[59].
4. It is appropriate to note, as well, an amendment to s.16A(2)(g) Crimes Act 1914 (Cth) effected in 2020. In Small v R [2020] NSWCCA 216, the Court said at [71]-[73]: "71 At the time when Xiao v R and Bae v R were decided, s.16A(2)(g) Crimes Act 1914 (Cth) required a sentencing court to take into account 'if the person has pleaded guilty to the charge in respect of the offence - that fact'. 72 Section 16A Crimes Act 1914 (Cth) has been amended so that, since 20 July 2020, s.16A(2)(g) now provides that a sentencing court must take into account: '(g) if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the time of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence.' 73 In resentencing the Applicant, this Court should apply s.16A(2)(g) in its present form which gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R and Bae v R."

Decision

1. For the purpose of determining the present application, it is sufficient to observe that there appears to be a doubt or question concerning the sentencing Judge's approach to the Applicant's guilty pleas in that her Honour (understandably given the then state of the law) did not have regard to the utilitarian value of the Applicant's pleas of guilty.
2. The doubt or question appears to arise (at least) from the following features of the sentencing remarks: 1. the Applicant's willingness to facilitate the course of justice is relevant to the subjective consideration for the sentencing court in s.16A(2)(f) Crimes Act 1914 (Cth) and not the assessment of the objective utilitarian assessment of the guilty plea at s.16A(2)(g): Bae v R at [55]; 2. the sentencing Judge's reference to the overwhelming prosecution case is not a relevant consideration in the assessment of the utilitarian and objective value of a plea: Bae v R at [52].
3. As with the sentencing decision in Bae v R, there appears to have been a Xiao v R error in the sentencing of the Applicant in 2015 which was not addressed on appeal to the Court of Criminal Appeal in 2016. Accordingly, it appears that there is a doubt or question as to the sentence passed upon the Applicant.
4. I am satisfied that, pursuant to s.79(1)(b) Crimes (Appeal and Review) Act 2001 (NSW), the whole of the Applicant's case should be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence.
5. Accordingly, I direct that: 1. pursuant to s.79(1)(b) Crimes (Appeal and Review) Act 2001 (NSW), the whole of the Applicant's case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence; 2. the Applicant's case should be listed before the Registrar of the Court of Criminal Appeal for further directions as soon as reasonably practicable.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2021