CRIMINAL LAW - application for referral to Court of Criminal Appeal to be dealt with as sentence appeal - Part 7 of Crimes (Appeal and Review) Act 2001 (NSW) - conspiring to import commercial quantity of heroin - whether doubt or question as to mitigating circumstance - approach on sentence to utilitarian value of guilty plea - whether Xiao v R error - 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 plea 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 Kang Min Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 1413 and Application by Matias Eduardo Cicero Olivares pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 96 ("Application of Olivares"), which saw referrals to the Court of Criminal Appeal, which upheld the appeal and resentenced the applicant in each case: Bae v R [2020] NSWCCA 35; Olivares v R [2021] NSWCCA 126.
3. The Commonwealth Director of Public Prosecutions did not seek to make any submissions with respect to the present application. It remains a matter for the Court to determine whether an order for referral should be made.
4. In Application of Olivares (at [10]-[13]), I described the procedure under ss.78 and 79(1) CAR Act as follows: "10 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]. 11 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]. 12 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]. 13 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 Plea in the District Court and the Court of Criminal Appeal

1. On 5 June 2002, the Applicant pleaded not guilty to the charge of conspiracy to import a commercial quantity of heroin. A jury was empanelled and the trial of the Applicant proceeded before Acting Judge Kinchington QC and a jury.
2. The trial proceeded for some four weeks and, at a time when the Crown case had almost concluded, the Applicant indicated on 3 July 2002 that he wished to change his plea. He was formally rearraigned and entered a plea of guilty to the charge contained in the indictment.
3. Proceedings on sentence took place on 12 August 2002 and the Applicant was sentenced on 27 September 2002.
4. It will be clear, from the length of the sentence passed, that the Applicant was sentenced for a very serious offence. The Applicant was the principal in a highly organised and ongoing conspiracy to import heroin into Australia in consignments which were concealed in parcels that contained, ostensibly, computer parts: R v Chen at [9].
5. In his sentencing remarks, Acting Judge Kinchington QC expressed satisfaction beyond reasonable doubt that the Applicant was the principal behind the conspiracy (page 4, sentencing remarks).
6. With respect to the Applicant's guilty plea, his Honour stated (page 6, sentencing remarks): "While I accept the offender's plea of guilty herein as some sign of his remorse or contrition, I do not think it is of the highest order."
7. The sentencing Judge said with respect to the Applicant's guilty plea (pages 7-8, sentencing remarks): "While it could not be said that the offender's plea of guilty was entered at the earliest opportunity, I am satisfied that it was entered reasonably soon after the full extent of the material on which the Crown relied had been brought to the attention of the offender. In all the circumstances of the case, it seems to me that the offender's plea of guilty, together with the subjective material herein, entitles him to a discount on the sentence which would otherwise be applicable to this offence of approximately 10%."
8. Towards the end of the sentencing remarks, his Honour provided a further explanation as to how the sentence had been calculated (pages 13-14, sentencing remarks): "In addition, I have kept in mind that the sentence will not be subject to any remission and in this circumstance have reduced a potentially 'life sentence' to one of 45 years and then reduced it by a further 10% because of his plea of guilty herein and his prospects of rehabilitation, and so have arrived at the head sentence of 40 years imprisonment and the non-parole period of 26 years which is approximately two thirds of that head sentence."
9. On appeal, the Court of Criminal Appeal found that the sentencing Judge had erred in calculations with respect to the weight of the heroin, by finding a total weight of between 16.9 and 17.2 kilograms of heroin as opposed to a total of 12.6 kilograms pure heroin: R v Chen at [35]-[37].
10. In addition, the Court of Criminal Appeal found error in his Honour's reference to "a potentially 'life sentence'" (see [16] above). Sully J said in this respect (at [61]-[66]): "61 I have difficulty with the concept that 'a potentially 'life sentence'' can be reduced to some determinate sentence by reason of the provisions of section 16G of the Crimes Act 1914 (C'th). This concept seems to me to be untenable in light of the decision of the High Court of Australia in Lee Vanit & ors. v The Queen (1997) 190 CLR 378. 62 In my opinion his Honour was required to consider whether the objective gravity of the offence was so great that, notwithstanding relevant subjective and other statutory factors including the plea of guilty, a life sentence, i.e. a head sentence of imprisonment for the term of the offender's natural life, should be passed. 63 An affirmative answer would have entailed his Honour's giving consideration to the fixing of a non-parole period pursuant to the provisions in that behalf of section 19AB of the Commonwealth Crimes Act. 64 A negative answer would have entailed the need to fix, according to proper principle and without further reference to a 'life means life' sentence, of a determinate head sentence, and an appropriate, if any, non-parole period. At that time it would have been, indeed, necessary to allow for the requirements of section 16G; and of any other statutory requirements, in particular those established by section 16A and by section 17A. 65 I take his Honour's remarks as quoted above at paragraph 59 to convey that his Honour did in fact entertain a 'life means life' sentence, but 'reduced' it to a determinate head sentence of 45 years, because of an erroneous perception that he was obliged to take some such course in order to comply with section 16G. 66 That error, coupled with the error earlier discussed as to the calculation of weights, requires, in my view, that this Court consider, in the exercise of its power and duty pursuant to section 6(3) of the Criminal Appeal Act 1912 (NSW), whether some other and more lenient sentence is warranted in law."
11. The Court of Criminal Appeal then proceeded to resentence the Applicant for the purpose of s.6(3) Criminal Appeal Act 1912 (NSW). Sully J allowed 10% for the Applicant's plea of guilty in explaining the new sentence to be imposed upon the Applicant (at [68]-[70]) (emphasis added): "68 In calculating the way in which this Court should now intervene, I would adopt the 'instinctive synthesis' approach as discussed in the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584: see in particular paragraphs 75, 76 and 77; adding the consideration, recognised by Gleeson CJ in paragraph 12 of his Honour's judgment in the same matter, that 'Judges are generally capable of entertaining two or more ideas at the one time'. I would allow 10 per cent for the plea and about 20 per cent for the section 16G factor. I would set, accordingly, a head sentence of 31 years. I would set a non-parole period of 23 years. 69 I observe as to the foregoing calculations: [1] I would not disturb the 10 per cent discount allowed by the learned sentencing Judge; but I consider that the applicant is thereby treated generously when it is remembered that for a month or so he defended himself upon a basis that he knew to be false; and that he only changed his plea when he had to face up to the fact that that particular game was up. [2] A discount of 20 per cent for the section 16G factor is less than the normal range of 30-33 per cent. There is, however, nothing lapidary about that range. If that range would produce an end result that would not be 'of a severity appropriate to the circumstances of the offence' then it is proper, in the spirit and the letter alike of section 17A, to make a fair adjustment. [3] For the same reason, I would set the non-parole period at, in practical terms, 75 per cent of the head sentence rather than at a point in the range 60-66 per cent. [4] The foregoing calculations seem to me to meet fairly any justified grievance that the applicant might otherwise have felt on account of the sentences passed upon He. [5] An additional ground, not previously canvassed herein, was taken by the applicant and was put as follows in the applicant's written submissions: 'It is submitted that a procedural unfairness occurred by the failure to supply relevant and cogent evidence to the Applicant and those advising him at the committal stage. That defect was remedied at trial immediately prior to the re-arraignment and plea of guilty. Having regard to what happened at trial upon disclosure, it seems highly probable that if disclosure had been made at the committal, the Applicant would have pleaded guilty to the substantive charge he then faced and that plea would have been accepted. He would then have been sentenced with Phillip He in circumstances which would have allowed parity considerations to be given immediate and full effect. In those circumstances, the principles in Cameron v The Queen (2002) 76 ALJR 382 of 'facilitating the administration of justice' would have operated in the Applicant's favour by further reducing the sentence imposed. "70 In my opinion, the thrust of this argument, as spelled out in the third sentence of the written submission, is wholly unsupported by any, let alone any credible evidence, from the applicant or otherwise. I would not uphold it."
12. As noted earlier, the sentence passed by the Court of Criminal Appeal comprised a head sentence of imprisonment for 31 years with a non-parole period of 23 years.

Submissions on Application

1. Mr Anderson, counsel for the Applicant, submitted that, in light of the decision in Xiao v R and the cases that have followed it, the sentencing Judge had erred by: 1. considering the concepts of contrition and remorse when assessing the value of the guilty plea, when such subjective considerations are appropriate for s.16A(2)(f) Crimes Act 1914 (Cth), but not the utilitarian value of the guilty plea as required by s.16A(2)(g); and 2. not expressly taking into account the utilitarian value of the guilty plea.
2. It was noted that none of the grounds of appeal related to the basis upon which the sentencing Judge had made an assessment of the discount for the Applicant's guilty plea, and the Court of Criminal Appeal did not deal with that as an issue. Having found error, it was submitted that the Court of Criminal Appeal had resentenced the Applicant in a manner which retained the 10% discount for the guilty plea (see [19] above).
3. Given the approach adopted by the sentencing Judge, which was not consistent with the principles in Xiao v R, it was submitted that error had occurred and this aspect had not been addressed on appeal by the Court of Criminal Appeal.
4. In these circumstances, it was submitted that the error remained an aspect of the sentence and had not been either addressed or remedied. It was submitted that the matter should be referred under s.79(1)(b) CAR Act to the Court of Criminal Appeal to be dealt with as an appeal against sentence.
5. As noted earlier, the Commonwealth Director of Public Prosecutions did not seek to make any submissions with respect to the application.

Decision

1. A number of decisions of the Court of Criminal Appeal have addressed the question of Xiao v R error. 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."
2. It is appropriate to note, as well, an amendment to s.16A(2)(g) Crimes Act 1914 (Cth) made 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."
3. 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 plea, in that his Honour did not have regard to the utilitarian value of the Applicant's plea of guilty. Of course, this approach was entirely understandable, given the state of the law in 2002 (when the Applicant was sentenced) and in 2003 (when he was resentenced on appeal).
4. The doubt or question appears to arise in the two respects posed for the Applicant in support of the present application (see [21] above).
5. In these circumstances, it appears that there is a doubt or question as to the sentence passed upon the Applicant. It will be a matter for the Court of Criminal Appeal to determine, in all the circumstances of the case, whether error has been demonstrated so that the Court should move to resentence the Applicant under s.6(3) Criminal Appeal Act 1912 (NSW). No doubt the Court of Criminal Appeal will have regard to the observations of Sully J, including the fact that the plea of guilty was entered four weeks into the trial and shortly before the close of the Crown case (see [19] above). Unlike Application of Olivares, both the sentencing Judge and the Court of Criminal Appeal in the present case did extend a quantified discount to the Applicant for his guilty plea. A question may arise as to whether error has occurred in this case and what course should be taken on appeal: Lu v R; Huang v R [2021] NSWCCA 68 at [38]. All of that, however, is a matter for the Court of Criminal Appeal.
6. For these reasons, I am satisfied that 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.
7. 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: 19 August 2021