Garcia-Godos v R

Court of Criminal Appeal (NSW)|2021-09-03|Before: Adamson J, Lonergan J

The proceedings on sentence

The proceedings on sentence took place before his Honour over several days, 10, 14, 15, 16 and 24 November 2016, on the last of which the sentence was imposed. The applicant disputed the nature of the drug in count 1, which led to there being disputed facts in the proceedings on sentence. However, as the findings of the sentencing judge are not in issue, it is unnecessary to address these.
On sentence, the Crown tendered the indictment; a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth); the applicant's criminal history; a statement of facts; material relating to the disputed facts (which need not be recounted for present purposes); the judgment of the District Court dated 28 February 2013 (the applicant's application to withdraw his pleas of guilty to both counts, which was refused); and the judgment of this Court dated 17 June 2015 (this Court's dismissal of the applicant's appeal against the decision of 28 February 2013); the transcript of the applicant's evidence on his application to withdraw his plea in the District Court; and remarks on sentence relating to the applicant's co-offenders. The Crown also provided a schedule of cases for offences under s 307.1(1) of the Criminal Code.
It was common ground that the only remarks on sentence of the applicant's co-offenders which were relevant were those relating to Cesar Maldonado. The sentence imposed on Mr Maldonado had been the subject of an application for leave to appeal to this Court. The appeal was allowed: Maldonado v R [2009] NSWCCA 189. Of present relevance, the sentence imposed on Mr Maldonado for the offence against ss 11.2 and 305.3(1) of the Criminal Code of aid and abet the manufacture of a commercial quantity of cocaine (being the cocaine which the applicant had imported) was 22 years' imprisonment. The maximum penalty for an offence under s 305.3(1) was life imprisonment. The sentences imposed on Mr Maldonado for dealing with money more than $100,000, which was proceeds of crime and which he believed to be proceeds of crime, were 10 years' imprisonment (for an amount of $600,000) and 8 years' imprisonment (for an amount of $150,000), which were to be served wholly concurrently. On re-sentence, the degree of accumulation and the non-parole period were reduced, which led to the imposition of a reduced overall sentence.
The material tendered on behalf of the applicant included, in addition to material which related to the disputed facts, expert reports of psychologists, Tim Watson-Munro, dated 7 November 2016, and John Machlin, dated 3 September 2011; the applicant's letter of apology; documents which established his engagement in and completion of programmes in prison; and 11 character references from family and friends. The applicant did not give evidence at the proceedings on sentence.
Mr Maarraoui, who appeared for the applicant at the sentence hearing, submitted to his Honour that a discount of 10-15% was warranted for the plea of guilty to count 1. When his Honour enquired of the Crown as to the appropriate discount, the Crown responded: "I'm not allowed to say what an appropriate discount is, I'm not allowed to go that far."
His Honour disagreed with this proposition. In respect of count 2, his Honour put to the Crown, "he needs to get 25% for that", to which the Crown responded: "No, because we don't follow the State formula but your Honour can give him such a discount ---"
In the course of the applicant's submissions, his Honour raised the "appropriate head sentences" in the following passage: "HIS HONOUR: We'll come to that but let's just try and concentrate on the appropriate head sentences. In relation to being the key operative in the importation of 30 kilograms of cocaine, a sentence carrying life imprisonment, the first offender, a man committing this crime, no doubt, for profit but sucked into it by reason of an addiction that developed after grossly destabilising events in his personal life, for which he wasn't responsible, a mature man, of education ‑ I find it very difficult, having just been told that I was manifestly inadequate. Perhaps 18 years? MAARRAOUI: As a head sentence? HIS HONOUR: Yes. Is that within range, Mr Crown? You can say that, can't you? … [CROWN]: … your Honour asked me a question, whether 18 was in the range. Without having the material, I'd have to say no. HIS HONOUR: It's not enough? [CROWN]: Not enough. Mr Maldonado got 22 for his role; that carried life. I appreciate there's circumstances that are relevant to every person but the Crown has always placed him at a higher level. But there's all those factors that would have been taken out. Plea of guilty but he had a history; that might have cancelled it out. One can always work on subjectives but, on a parity issue, when your Honour does the balancing, whatever your Honour does ‑ and if you accept the Crown's case that he's directing, I know my friend says he's not ‑ but there has to be a place above ‑ then, 18 - "
The reference to "having just been told that I was manifestly inadequate" was a reference to this Court's decision in R v Dashti [2016] NSWCCA 251, which had been delivered on 10 November 2016, the second day of the sentence proceedings before his honour in this matter. This Court allowed a Crown appeal against a sentence imposed by the sentencing judge.
Later in the exchange, his Honour calculated that Mr Maldonado's head sentence of 22 years' imprisonment (for the offence of aid and abet the manufacture of a commercial quantity of a controlled substance (cocaine) for a commercial purpose) equated to a starting point, before the discount of 25% for his plea of guilty, of 27 years' imprisonment. After the applicant's counsel had finished his submissions, the following exchange ensued between the sentencing judge and the Crown: "HIS HONOUR: Anything you want to say in reply, Mr Crown? Just on accumulation, I accept the implicit correction about the 18 years that had popped into my head and, in fairness to him, I just want to let this go for a few days before I come to a final conclusion. Assuming for the moment that he should get about 22 years as a head sentence for the importing, you really don't have to add much for the money laundering, do you? [CROWN]: How your Honour structures the sentence at the end - we've given you, in writing‑‑ HIS HONOUR: To be blunt about it, it seems to me that 24 years, all up, would be a pretty substantial sentence. [CROWN]: I hear what your Honour says but I'm constrained by what I can comment. All I can say is that, in the sentencing process, what your Honour is required to do is to find an appropriate sentence for the offendings [sic, offending]. … … [CROWN]: As your Honour has said, the Crown has put [the applicant's] role as there in relation to the import, there in relation to the money laundering, so, therefore, he's at that higher role and your Honour is taking that into consideration. I don't wish to go over that, notwithstanding that my friend has tried to place him lower than [Mr Maldonado], tried to place him lower than the others. Can I just backtrack, taking‑‑ HIS HONOUR: It's really so difficult - let's suppose I fix on 25 as the aggregate sentence. [CROWN]: Your Honour can start the sentences in different places. Your Honour could still give ‑ and I'm using figures, not ‑ without suggesting, your Honour. HIS HONOUR: Of course. The money laundering would be about 10, something like that. [CROWN]: To use, just for discussion, the 22, your Honour wouldn't say, 'There's 32,' but your Honour may say, 'It starts from there, starts there. I reach that sentence of that.' HIS HONOUR: That's exactly what I'm talking about. [CROWN]: But then your Honour sets the non‑parole period. HIS HONOUR: Aggregate non‑parole period? [CROWN]: One non‑parole period. HIS HONOUR: That's right. In relation to the non‑parole period, at least the State system gives you guidance; if there aren't some special circumstances, then it's 75%. [CROWN]: No, because what the Commonwealth does, in the different sections ‑ you look at s 16A [of the Crimes Act] and then, applying those factors, you reach what you think is appropriate in the circumstances …"
At the conclusion of the hearing on 16 November 2016, the sentencing judge stood the matter over for sentence to 24 November 2016. Before his Honour delivered sentencing remarks, he referred to a schedule of cases which the Crown had provided in the interim. His Honour commented on the schedule in an exchange with counsel as follows: "I must say that a single judge looking to get guidance from appellate decisions, when they vary so much, it's a very difficult matter. All I can really think of is that the overriding matter in this case has to be the hope of general deterrence and the certainty of unambiguous authoritative denunciation on behalf of the community. There are more‑serious cases than this, by way of quantity, which, like this, fall short of being in the worst class of case, but this is, in my view, above midrange in seriousness."

The remarks on sentence

In the remarks on sentence, his Honour accurately described the counts to which the applicant had pleaded guilty and correctly noted (as indicated in the table above) the relevant maximum penalties for each offence. Of the factual circumstances, his Honour said: "Count 1 relates to the importation organised by this offender of approximately 34 kilograms of pure cocaine into Australia from Peru concealed within 45 bags of lucuma powder which took place on 23 December 2005. … Count 2 relates to proceeds of sale of the cocaine by a co-offender, Cesar Maldonado. The transportation of the cocaine to the warehouse premises in St Marys was organised by or under the supervision of [Mr] Maldonado and there is no cogent evidence, except by inference, that the present prisoner had the overall power of supervision or veto over such arrangements. That is not the only rational inference and I decline to draw it. In any event, as a matter of narrative, in early 2006 the lucuma powder containing cocaine was taken to that warehouse; it was then treated with petrol and acetone progressively to extract cocaine from the powder, which process took about two months."
I note that lucuma powder was a legal plant-based substance which was thought to provide health benefits.
His Honour described the actions of the other co-offenders, before finding: "The role of each of them, apart from [Mr] Maldonado, was so much more subsidiary than that of the present offender that no help was furnished by their sentences as a kind of standard against which to sentence this offender. Nor do considerations of parity loom very large."

Count 1: importation

His Honour found that the applicant travelled to and from Australia for the purposes of the importation and was in Australia for three separate periods: 25 February 2005-16 May 2005; 12 August 2005-13 January 2006; and 17 January 2006-26 March 2006. His Honour also found that the applicant worked with associates in Peru and Colombia to import the cocaine and recruited someone to act as his consignee in Sydney, as well as establishing a business front to make the importation look legitimate. His Honour also found, with respect to count 1: "[The applicant] monitored the importation business and advised associates in Peru when the imported cocaine had cleared customs of Sydney. He arranged for the powder to be collected from premises under the control of the consignee and transport it to the warehouse premises in St Marys. He oversaw in a general way, not involving much actual instruction or control, though evidently involving the ability to instruct and control, the subsequent sale of the cocaine. Finally, he controlled the remittance of cash proceeds from the sale of the cocaine for himself and his associates in Peru and Colombia. The activities referred to after the collection from the consignee's premises are of relevance to the importation charge only insofar as they cast light, which they do tend to do, upon his place in the hierarchy of those concerned with the importation."
His Honour set out the "business" which the applicant had endeavoured to establish with Mr Assaf (the consignee of the importation) for the sale of lucuma powder (with which the cocaine was mixed in the importation to minimise the risk of detection). His Honour found that the street value of the cocaine was more than $15 million and its wholesale value was more than $5 million.

Count 2: dealing with proceeds of crime

His Honour found that count 2 involved remitting the cash proceeds of the sale of cocaine to Peru and Colombia in 2006 for the applicant and his associates. His Honour found: "The main people involved in that aspect of the operation working under the instructions of this prisoner were Trujillo Mesa, Maria Maldonado, Cesar Maldonado, Gallego Laballe and Cornejo Acosta. The pattern was that Cesar Maldonado would provide the cash proceeds to Patricia Trujillo Mesa or Maria Maldonado to store it in the apartment in Waterloo. They would pass quantities of the cash to Gallego Laballe who in turn would distribute the cash to Cornejo Acosta and a network of international students who would remit the cash, in amounts below $10,000 to avoid detection through Australia financial reporting requirements, to Peru and Colombia through a large number of bank accounts opened in different names specifically for that purpose. It is clear from telephone intercepts that those involved in storing and transferring the cash proceeds all reported to the present offender. … The [applicant] dictated what amounts of money would be remitted, when and to whom, and he also issued instructions about what methods should be used to remit the moneys, though at least one of the persons reporting to him appeared to have much greater expertise about the actual methods that he used to remit the moneys in order to escape detection than he himself had. The [applicant] appears to have been solely responsible for accounting to his associates overseas for the proceeds from the sale of the cocaine and for paying all expenses, at least in Australia, related to the cocaine import."

The applicant's arrest and time in custody on remand

His Honour noted that the applicant had been arrested in Peru on 11 July 2008 and was extradited to Australia on about 28 February 2010, and has been in custody since that time. On 19 July 2011 he was interviewed by the police and denied any involvement in the importation.

Traversal of plea

His Honour referred to the lengths to which the applicant had gone to withdraw his plea of guilty to the importation charge (count 1). The applicant entered pleas of not guilty in the Local Court and was committed for trial in the District Court. On 5 May 2011, following plea negotiations, the applicant pleaded guilty to counts 1 and 2 and admitted his guilt to what had formerly been count 3 (a count of dealing with the proceeds of crime), which was added to a schedule under s 16BA of the Crimes Act. In March 2012, he applied to withdraw his guilty pleas. His application was dismissed on 28 February 2013. His appeal against the dismissal was dismissed on 17 June 2015. In November 2016, the applicant again sought to withdraw his pleas before the sentencing judge, who rejected the application after hearing evidence.

Objective seriousness

Of the applicant's role, his Honour said: "The [applicant] was involved at a high level in a sophisticated criminal syndicate which imported, extracted and trafficked the cocaine and laundered the proceeds of sale back to the country of their origin. Specifically, the [applicant] recruited [Mr] Assaf to act as the consignee and proposed a false arrangement in part analogous with a partnership with him to disguise the cocaine as an import being part of a general business. He arranged for associates in Peru to send the cocaine import to [Mr] Assaf via the company nominated by [Mr] Assaf. He monitored the importation process and advised associates in Peru of the cocaine once it cleared customs. He arranged for the co-offender [Mr] Maldonado to see the collection of the cocaine import from [Mr] Assaf in its transport to warehouse premises which had been avoidably [sic] arranged by or under the direction of [Mr] Maldonado."
His Honour assessed the relative roles of the applicant and Mr Maldonado as follows: "To adapt the language of industrial law about highly skilled employees, the [applicant] had the power to direct [Mr] Maldonado insofar as there was scope for such direction as to the rate of disposition and acceptable prices."
His Honour found the applicant's criminality for the money laundering offence to be high and noted that the amount of money was seven times the minimum amount for an offence against s 400.4(1) of the Criminal Code. For the importation offence, he assessed the objective seriousness as being "above midrange, though just falling short of being in the worst class of case and also to a degree falling short of being in the highest category of seriousness." His Honour noted that the purity of the cocaine was "very high"; that the quantity was "very large … falling short of … enormous"; and that the value was "very large". His Honour said further: "The amount imported was of the order of 15 times the minimum commercial quantity, and at the time it was imported, the street value was well into the millions."
His Honour found that the offences formed part of a course of conduct which occurred over a period of at least 14 months and that the applicant's level of involvement in the operations "significantly elevates the offences in the scale of relative seriousness."

The relative weight to be given to subjective circumstances

When outlining the relevant principles, his Honour purported to quote what I said in Karan v R [2013] NSWCCA 53 (Karan) at [54] (Johnson and Harrison JJ agreeing). His Honour said (of relevance to ground 3): "The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence. It follows, as her Honour said, that: 'The principles set out above indicate the greater relevance of objective criminality and general deterrence to the sentencing of offenders engaged in drug importation. Therefore although the starting points incorporate subjective factors, such factors must (as said) play a lesser role.'" [Emphasis added.]
It was common ground that the word "must" was an error as I had actually said "such factors play a lesser role."

Discount for the plea

It was common ground that his Honour assessed the discount for the plea of guilty on the basis (found to be incorrect in Xiao) that a federal offender can obtain a discount only if he demonstrates remorse, acceptance of responsibility and a willingness to facilitate the course of justice.
His Honour assessed the Crown case as "very strong in respect of all charges." His Honour found that the applicant had only "some limited willingness to facilitate the course of justice" (given his applications to withdraw his plea). However, his Honour allowed a 10% discount for the importation charge and a 25% discount for the money laundering charge.

Subjective circumstances

The applicant was born in 1968 and was 38 years old at the time of the offences and 48 years old at the time the sentence was imposed.
His Honour found that: "… the [applicant] was at the time an addict and had fallen into addiction after exceptionally distressing developments in his personal life led him to seek solace in the use of cocaine and other drugs, legal and illegal. However, he was clearly functioning at a high level, and however much [of] his former moral sense, which appears to have been high, may have been compromised by his addiction, I do not believe that he would have played so significant a role merely to fund his ongoing addiction. Indeed he spoke of money coming out of his share of the proceeds in a way which indicates that there was more than would be needed simply to pay for the drugs he was consuming. The inference is that nobody would risk long periods of imprisonment, which he must have expected, except for very substantial profit."
His Honour found that the applicant was a "well-educated and capable businessman", who was "happily enough married for some years with two daughters". His Honour found that the applicant had learned, after he had been married for about five years, that his father had been sexually involved with his wife before the applicant had known her. His Honour accepted that the applicant was "utterly devastated by the disclosure" and stopped working, engaged in substance misuse and attempted suicide. His Honour said: "Cocaine was very cheap in Peru, about $25 per gram, and in that setting his addiction rapidly escalated to the point where he was using cocaine at an extremely high rate and, in the view of the psychologist, reflecting considerable desensitisation to the drug. I accept that this impacted upon his judgment but not nearly to the point of his being unaware of his criminality before or during the time of his offending behaviour."
His Honour found that by 2011 (while in custody) the applicant "had a renewal of his native Christianity and was seriously involved in religious activity and, as reported by his religious advisors, a degree of personal redemption."
The sentencing judge noted that Mr Watson-Munro considered that the applicant was suffering from major depression compounded by a substantial substance misuse disorder at the time of the offending. His Honour found that although his remorse was genuine, it was "not as deep as one would wish or as often appears."
His Honour found that the applicant had "done as much as anyone could in gaol and tried to rehabilitate himself".
His Honour noted the applicant's prior criminal history in Australia comprised possession of a prohibited import in 1990, for which he was fined $1,000.

Parity

His Honour specifically addressed the sentences imposed on Mr Maldonado as follows: "There are also the appellate-sanctioned sentences of [Mr] Maldonado who was intimately involved with the [applicant] the relevance of which it is impossible to deny and the propriety of which is I think not really in question. Notwithstanding that there was no actual importation charge levelled against [Mr] Maldonado he was sentenced to 22 years' imprisonment for involvement in the 'manufacture' of the cocaine,15 years for the trafficking and ten and eight years for the two money laundering charges. Their relative roles I have referred to. [Mr] Maldonado received discounts for early pleas of guilty. The trial judge, without demur from the Court of Criminal Appeal, seems to have accepted that some moderation of the non-parole period, on account of his more advanced years than in the case of [the applicant], was relevant to the setting of a non-parole period of about 60%. On the other hand, [Mr] Maldonado was well integrated into the Australian community in the sense that he had friends and associates and family here, and his time in gaol would not be as hard as that of this prisoner. [Mr] Maldonado's sentences were only partially accumulated, and the end result was that he received an aggregate head sentence of the order of 28 years and a non-parole period of 17 years."

The structure of the sentence

His Honour explained the way in which the sentence was structured as follows: "Doing my best with it all, I think that the [applicant] should be sentenced to 24 years for count 1, the importation, which I have arrived at by a notional sentence of 27 years discounted by about 10%, and a sentence for the money laundering of ten years for which I have discounted from 14 years by about 25%. There is no requisite prima facie standard as to the length of a non‑parole period for Commonwealth offences, but long practice has been that somewhere in the order of 60 to 66% has generally been set absent really special circumstances. I think it appropriate to set a minimum term of 17 years having regard to that general approach."

Ground 1: failure to take into account the utilitarian value of the plea of guilty

For the reasons given above, the Crown concedes error with respect to ground 1. As referred to above, the parties agreed that the effect of Diaz was that this error required this Court to re-sentence even when there was no challenge to the amounts of the percentage discounts allowed by the sentencing judge. There is therefore neither need nor occasion to address the correctness of this proposition.
Since preparing my reasons, I have had the benefit of reading the reasons of Simpson AJA in draft. In respect of ground 1, I agree with her Honour's observations questioning the correctness of the Crown's concession. I also agree with her Honour's conclusion that, for the reasons given by her Honour, the present case is not the appropriate occasion to determine that question.

Ground 2: alleged influence of the views of the Crown on the sentencing discretion

Mr Woods contended that the Crown had, by indicating that a head sentence of 18 years' imprisonment on the importation count was not within range, breached the prohibition in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro). He submitted that this error influenced the sentencing judge and caused the sentencing discretion to miscarry. In response to the Crown's submission that the Crown's response to the postulated 18 years' imprisonment was germane to the question of parity, Mr Woods submitted that the principles in Barbaro prevented the Crown from making any submission on parity which indicated that a particular sentence would infringe the principle of parity and that there was nothing to distinguish such a submission from a submission that a particular sentence was manifestly excessive or manifestly inadequate.
Mr Woods submitted that the following observation by the sentencing judge was particularly significant: "In relation to being the key operative in the importation of 30 kilograms of cocaine, a sentence carrying life imprisonment, the [applicant], a man committing this crime, no doubt, for profit but sucked into it by reason of an addiction that developed after grossly destabilising events in his personal life, for which he wasn't responsible, a mature man, of education ‑ I find it very difficult, having just been told that I was manifestly inadequate. Perhaps 18 years?"
Mr Woods, in effect, submitted that his Honour would have imposed a head sentence on the applicant for the importation offence of 18 years' imprisonment but for the Crown's response. Mr Woods submitted orally: "… that passage shows that that was his Honour's initial instinctive response, attempting instinctively to synthesise what his Honour regarded as the important factors on sentence. This is a synthesis of course of an experienced sentencing judge."
Because of the parties' reliance on Barbaro, it is helpful to set out the seminal passages from the reasons of the majority (French CJ, Hayne, Kiefel and Bell JJ), omitting footnotes: "Two flawed premises 6 The applicants' arguments depend on two flawed premises. The first is that the prosecution is permitted (or required) to submit to a sentencing judge its view of what are the bounds of the range of sentences which may be imposed on an offender. That premise, in turn, depends on the premise that such a submission is a submission of law. For the reasons which follow, each premise is wrong. 7 The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed. That being so, the prosecution is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge. 8 Because the premises for the applicants' arguments are wrong, the appeals must fail …"
The majority addressed the Crown's obligation to assist the Court in the following passage: "38 If a sentencing judge is properly informed about the parties' submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range. If the judge is not sufficiently informed about what facts may or should be found, about the relevant principles or about comparable sentences, the prosecution's proffering a range may help the sentencing judge avoid imposing a sentence which the prosecution can later say was manifestly inadequate. But it will not do anything to help the judge avoid specific error; it will not necessarily help the judge avoid imposing a sentence which the offender will later allege to be manifestly excessive. Most importantly, it will not assist the judge in carrying out the sentencing task in accordance with proper principle. 39 What is more, unless the sentencing judge gives some preliminary indication of the sentence which he or she intends to impose, there can be no occasion for the prosecution to anticipate possible error and make some correcting submission. Even in a case where the judge does give some preliminary indication of the proposed sentence, the role and duty of the prosecution remains the duty which has been indicated earlier in these reasons: to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases. It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall. 40 The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. … 41 As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases …"
This Court confirmed in R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 at [223], by reference to Barbaro at [41], that Barbaro did not prevent parties from providing to the sentencing judge other sentencing decisions which might bear on the sentencing discretion.
When one has regard to the exchanges recorded in the transcript set out above, it is plain that the sentencing judge wanted guidance from the Crown as to the available range or the appropriateness of a particular sentence. The Crown's refusal to answer his Honour's question directly demonstrated the Crown's awareness of the principles in Barbaro and a determination not to breach them. The Crown's adherence to the principles is demonstrated by the exchange relating to the discount for the plea of guilty where his Honour suggested that the applicant "needs to get 25% for that." The Crown's response ("No, because we don't follow the State formula but your Honour can give him such a discount") was designed to correct his Honour's misapprehension in two ways: first, by reminding his Honour that the offence was not a State offence and that therefore the Crimes (Sentencing Procedure) Act 1999 (NSW) did not apply to limit the discount that could be given for a plea of guilty; and, second, to inform his Honour that it would be open, as a matter of law, to allow such a discount, it being a matter for his Honour's discretion. The Crown adopted a similar approach when his Honour proposed, as an effective default position, a ratio of 75% between the non-parole period and the total term. The Crown reminded his Honour that, as the offences were Federal offences, the discretion was not constrained by the NSW statutory provisions as to the ratio (in s 44(2) of the Crimes (Sentencing Procedure) Act).
When his Honour proposed a head sentence of 18 years' imprisonment for the importation offence and asked the Crown whether the sentence was "within range", this question was answered in the negative. I am not persuaded that this answer infringed the prohibition in Barbaro. Indeed, a fair reading of the transcript indicated that the prosecutor was acutely aware of the restrictions on what he could say.
The Crown's negative answer to his Honour's question was, having regard to the context, part of the Crown's submission on parity which comprised the following integers: 1. the applicant's role was significantly greater than Mr Maldonado's; 2. the starting point for Mr Maldonado's sentence for the comparable offending of aiding and abetting the manufacture of the cocaine (which the applicant had imported) was 27 years (reduced to 22 years after taking into account a discount of 25% for his pleas of guilty); and 3. a postulated head sentence for the applicant of 18 years' imprisonment would give Mr Maldonado a justifiable sense of grievance on the basis of unjustifiable disparity.
None of these integers involved the expression of an opinion by the Crown. Each comprised a proper submission which was designed to assist the sentencing judge. Further, the High Court expressly confirmed, in [39] of Barbaro, that the Crown was both entitled and obliged to draw the sentencing judge's attention to "comparable cases." There can be no more relevant case to the exercise of a sentencing discretion than a judgment of this Court on a sentence imposed on a co-offender (in the broad sense explained in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30] (French CJ, Crennan and Kiefel JJ)). Thus, this Court's decision in relation to the sentence imposed on Mr Maldonado was a matter which was required to be brought to the sentencing judge's attention and was properly the subject of submissions, including that the Crown regarded the aiding and abetting the manufacture offence committed by Mr Maldonado as relevant to the sentence to be imposed on the applicant for the importation offence.
For these reasons, ground 2 has not been made out.

Ground 3: alleged error in assessing relative relevance of subjective matters in sentencing for serious drug offences

This ground can be addressed briefly. As set out above, his Honour misquoted what I said in Karan. If his Honour had intended to paraphrase what I said, he could have used the word "may" rather than "must". If his Honour applied the misstatement as a binding principle, then there was an error. However, when one reads the remarks on sentence as a whole, it is plain that the sentencing judge gave considerable weight to subjective matters, which lends support to the proposition that the sentencing judge understood the correct principle and that the error was merely an oral (or transcription) slip, rather than an actual error which affected the discretion.
Further, although Mr Woods placed great emphasis on the disclosure made to the applicant about his father's relationship with his wife, the evidence (which comprises the histories the applicant gave to Mr Watson-Munro and Mr Machlin) is insufficient to establish how proximate in time the disclosure was to the offending conduct. Further, while the sentencing judge accepted that the disclosure caused the applicant to use cocaine and develop an addiction, the link between the disclosure and the applicant's senior role in a crime syndicate to import and distribute cocaine and then remit the proceeds of crime to Peru and Colombia is a much more tenuous one.
I am not satisfied that ground 3 has been made out.

Re-sentencing

As referred to above, it was common ground that this Court is obliged to re-sentence the applicant because of the Xiao error. Neither the findings made by the sentencing judge, nor the discounts to be applied for the applicant's pleas of guilty (10% for count 1 and 25% for count 2) are challenged for the purposes of re-sentence.
The further material on re-sentence comprises the unchallenged affidavit evidence of Jordan Gear affirmed on 18 August 2021 which establishes the following.
The applicant has not had any custodial charges and has been regarded as a well behaved and polite prisoner. He has not received any in-person visits from family (who live in Peru) since his sentence was imposed. He had no visits between 5 November 2017 and 26 August 2019 and his last in-person visit was on 28 December 2019. Since 6 June 2020, he has had AVL visits with his sister, Maria.
He has been consistently employed in the prison, including as a textile machinist, a general hand, a Food Services worker and is presently a Leading Hand in Light Engineering. A note on his work record described the applicant's work ethic as "fantastic" and praises his punctuality and courtesy. During his time in prison, his English has improved. In a note dated 23 March 2020, he was described as having "excelled" in the EQUIPS Addiction Program. It was also noted that he had remained drug free for 12 years (since he was taken into custody).
I do not regard the additional evidence as painting a different picture from that described by the sentencing judge in his remarks on sentence delivered on 24 November 2016. The applicant's good behaviour in prison, then and now, is reflective of his pro-social upbringing and education. His work ethic was previously demonstrated by his business success in Peru. Then, as now, he has applied himself assiduously to work and courses in prison. The distance between him and his family is a consequence of nature of the offending which caused him to travel from Peru (where his family lives) to Australia to arrange for and camouflage the importation and deal with the proceeds of crime.
I have also taken into account the parity principle and had regard to the sentence imposed on Mr Maldonado. I have had regard to the schedule of cases provided to the sentencing judge, bearing in mind the limitations of such material: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [66] (Gaudron, Gummow and Heydon JJ); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]-[57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The quantity of the drug and the role played by the offender in the importation are only two of the several relevant factors which are to be considered.
I have also had regard to the principle that the non-parole period is to represent the minimum period the offender must spend in custody having regard to the purposes of punishment and objective and subjective features of the case: Power v The Queen (1974) 131 CLR 623 at 627-628 (Barwick CJ, Menzies, Stephen and Mason JJ); [1974] HCA 26.
Having regard to all the matters relevant to sentence, as reflected in his Honour's findings, including as to objective seriousness, and the additional evidence, I am not satisfied that any lesser overall sentence or non-parole period is warranted. Accordingly, in my view, the appeal ought be dismissed.
The Crown did not oppose an extension of time for leave to appeal by reason of the Xiao error.

Proposed orders

For the reasons given above, I propose the following orders: 1. Extend the time within which the applicant is to file an application for leave to appeal to 12 April 2021. 2. Grant leave to appeal. 3. Dismiss the appeal.
LONERGAN J: I agree with Adamson J.

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(Sentencing Procedure) Act 1999(NSW)

Ground 1: discount for the plea of guilty

In that part of the remarks on sentence in which the sentencing judge dealt with the allowance to be made in recognition of the applicant's pleas of guilty, he said: "A Federal offender can obtain a discount for a guilty plea only if he establishes on the balance of probabilities that he demonstrates remorse, acceptance of responsibility or a willingness to facilitate the course of justice."
It will be observed that no mention was made of the utilitarian value of the pleas and it may be taken that his Honour did not take that consideration into account. His Honour then proceeded to reduce the sentence he otherwise would have imposed in respect of the importation offence by 10%, and that in respect of the money laundering offence by 25%.
The observation quoted above was entirely in conformity with the law as it was then understood, as stated in Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458. Fifteen months later, in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 this Court declared that the principle stated in Tyler is wrong and should not be followed. The utilitarian value of a plea of guilty is, like the other considerations mentioned by the sentencing judge, available to be taken into account in the quantification of the discount to be allowed.
Accordingly, the basis on which the sentencing judge quantified the discount he allowed was (in part) incorrect, and the Crown so conceded. Of some interest is what flows from the statement of principle now known to be erroneous. The parties agreed that, in accordance with the decision of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, this Court must proceed to exercise its own independent sentencing discretion. The position of the applicant was: "In light of Xiao, these remarks disclose error. It is submitted that the sentencing discretion ought to be re-exercised on that account. The complaint is that a wrong principle was applied, not that inadequate discounts were applied. Even where there is no complaint as to the level of discount applied by a sentencing judge, the Court will still uphold a complaint of error and proceed to exercise the discretion afresh where the sentence was imposed contrary to Xiao." In the present case there is no challenge to the level of discount applied by the sentencing judge, namely 10 per cent for count 1 and 25 per cent for count 2. The Court is asked to apply the same discounts for resentencing purposes."
It may seem beyond curious that an erroneous statement of principle, which, it is acknowledged, had no adverse operative effect on the sentence imposed, gave rise to no wrong finding of fact, no wrong conclusion and no injustice, the result of the application of which is expressly endorsed and adopted by the applicant, should nevertheless have the consequence of imposing on this Court the duty to substitute itself for the sentencing judge and embark upon a resentencing process. Yet that is what the applicant contends and the Crown concedes, and appears, to some extent at least, to be supported by powerful authority.
The applicant's submission and the Crown's concession derive from the decision of this Court in Diaz v R [2019] NSWCCA 216, in which Button J, with the agreement of Gleeson JA and Lonergan J, considered, in not dissimilar circumstances, that even though the discount applied was "arguably the right discount" (although "given for the wrong reasons"), the failure to take into account the utilitarian value of the plea caused the sentencing discretion to miscarry and required this Court to resentence. This last proposition in turn derives from the plurality judgment in Kentwell, in which their Honours said: "42. …When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the [Crimes (Sentencing Procedure) Act 1999 (NSW)], and any other Act or rule of law require or permits. …" Their Honours, however, recognised some exceptions, adding: "This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion."
Their Honours went on to give, by way of example, adoption of an incorrect sequence in the nomination of the head sentence and the non-parole period as an error that would not create a duty in this Court to exercise the sentencing discretion afresh. Such an error, without more, their Honours said, does not affect the exercise of the sentencer's discretion.
The Court in Diaz did not think that error in the application of the principles applicable to the quantification of a discount for a plea of guilty fell into the category of errors that do not vitiate the sentencing discretion. To the contrary, their Honours considered that the error was of the kind that does vitiate the exercise of discretion and one that calls for a fresh sentencing exercise by this Court, even though no error could be seen in the result.
With respect, I am not persuaded that that conclusion stands up to examination. It is necessary to bear in mind how the sentencing process, in practice, operates in relation to sentence discounting (whether discounting for a plea of guilty, assistance to authorities, or any other circumstance in which a discrete and quantifiable discount is applied).
In those circumstances, the court first selects a sentence (commonly referred to as "the starting point"). That is done in the conventional application of sentencing principles to the relevant facts, taking into account both the objective circumstances of the offence (or offences), the personal circumstances of the offender, and established sentencing patterns for offences of the kind in question.
Quantification of the discount is a separate process; in the case of sentencing for offences against Commonwealth law the quantification takes into account a range of matters, including those noted by Madgwick QC ADCJ, as well as (since Xiao) the utilitarian value of the plea or pleas. That quantification is then applied to the sentence selected as the starting point. While error in the discount quantification process, as a matter of mathematics, affects the sentence ultimately imposed, it does not affect the starting point and does not denote error in the process of selecting the starting point. It is a completely separate process.
I return to [42] of Kentwell. The "determination" or "discretion" to which their Honours referred was, in my opinion, the determination of the starting point of the sentence. If there were no error in that process, error in the quantification of the discount has no more than a mathematical (and easily corrected) impact on the sentence ultimately imposed.
Error in the quantification of the discount is arguably, in my opinion, error of the kind referred to in the latter part of [42], that does not vitiate the exercise of the discretion. The question here is particularly stark because the applicant accepts, explicitly, that the mis-statement of principle was not productive of any error in the result of the exercise (that exercise being the quantification of the discount) nor in the application of the discount to the sentence selected as the "starting point". It therefore could not have had any material effect on the exercise of the sentencing discretion. How, in those circumstances, it might be asked rhetorically, could it be said that the discretion miscarried?
These views have to be evaluated in the light of the decision of a five judge bench of this Court in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. That case, also, involved error (conceded) in the quantification of the discount (in relation to an offence against State, not Federal law, under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) applicable to a plea of guilty. The error in Lehn was denial of procedural fairness in rejecting (without forewarning) a Crown concession that a discount of 25% was appropriate, and allowing a discount of only 20%, on the expressed basis that a greater discount would have had the effect of reducing the sentence to one that would have been "unreasonably disproportionate to the nature and circumstances of the offence[s]" (subs (1A) of s 22).
There is a point of distinction between Lehn and this case, although it is, perhaps, a fine one. In Lehn, the approach taken by the sentencing judge was held to have been "directly connected to a sentencing purpose" (at [64]). Bathurst CJ (with whom Beazley P, and Schmidt and Wilson JJ agreed) considered (at [66]) that it was not open to conclude that the error: "… was not connected with the sentencing process or did not affect the sentencing discretion."
In that case the reasoning of the sentencing judge to the quantification of the sentencing discretion included assessment of the sentence to which the discount was to be applied with reference to the proportionality of the resulting sentence after the application of the discount. That is the point of distinction with this case, in which the error is entirely independent of the sentencing discretion, until the point of its application.
R A Hulme J, while agreeing in the result in Lehn, expressed his own reasons, reiterating what he had earlier said in Martin v R [2016] NSWCCA 104: "Where there is error that does not entail vitiation of the entire sentencing discretion, but is an error that only affects a discrete component of the sentence that could have no potential bearing on the whole, the discretion should be re-exercised but only in relation to that particular component." (emphasis added by his Honour in Lehn) His Honour, however, accepted that, in the circumstances of Lehn, the error did affect the sentencing process.
I find it difficult to see, in the present case, how the acknowledged mis-statement of principle caused the sentencing discretion to miscarry. Like R A Hulme J in Lehn I doubt that the plurality in Kentwell (at [42]) intended that a misstatement of principle having no impact on the exercise of the sentencing discretion should result in the re-examination of that discretion by this Court. For these reasons I question the Crown's concession that Kentwell required this Court to proceed to re-exercise the sentencing discretion. Absent that concession, I would have been inclined to reject ground 1 of the proposed appeal. However, because: (i) the concession was made and no issue was taken with it; (ii) the concession having been made, the questions I have raised were not debated; and (iii) there is authority in this Court tending to the contrary of the tentative views I have expressed, authority that, to my knowledge has not previously been questioned; I accept that the appropriate course, in this case, is to proceed to resentence the applicant.

Ground 2: Barbaro (Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2) error?

The relevant passages of the transcript are set out in the judgment of Adamson J.
The transcript shows that sentencing proceedings took place over 6 days, commencing on 9 November 2016. Evidence in relation to disputed factual issues was taken on 9, 10, 14 and 15 November. The sentencing judge then heard submissions with respect to the factual findings for which the parties contended.
The sentencing submissions began on 15 November and continued throughout virtually the whole of the following day, 16 November. Examination of the transcript shows that the procedure was somewhat less formal than is often the case, and interactive. A good deal of attention was paid to identification of the applicant's role in the importation relative to that of a co-offender, Cesar Maldonado. Mr Maldonado was charged with four offences, including one of aiding and abetting the manufacture of a commercial quantity of cocaine, and one of trafficking a commercial quantity of cocaine, each of which carried a maximum penalty of imprisonment for life. There was thus some complexity in the selection of a sentence to be imposed on the applicant that bore an appropriate proportionality to that imposed on Mr Maldonado. Mr Maldonado's sentence was of particular relevance, not only as a co-offender, but because he had been resentenced after a successful appeal to this Court: Maldonado v R [2009] NSWCCA 189.
Much in the debate on the sentencing of the applicant depended on similarities to and differences from the circumstances of Mr Maldonado's case. Some of the discussion that took place on 16 November was about the precise quantity of cocaine the applicant should be treated as having imported, Mr Maldonado having pleaded guilty to the importation of 34 kilograms.
It was in that context that his Honour "floated" a head sentence of 18 years and asked the Crown Prosecutor if that sentence was "within range". The Crown Prosecutor did not immediately answer that question; defence counsel intervened and the discussion became one about the quantity of cocaine for the importation of which the applicant was to be sentenced. Later, the Crown Prosecutor said: "… your Honour asked me a question, whether 18 was in the range. Without having the material, I'd have to say no." He went onto explain, by reference to Mr Maldonado's sentence and circumstances, why a sentence of 18 years would have been inappropriate.
Later again, his Honour said: "… just on accumulation, I accept the implicit correction about the 18 years that had popped into my head and, in fairness to him, I just want to let this go for a few days before I come to a final conclusion. Assuming for the moment that he should get about 22 years as a head sentence for the importing, you really don't have to add much for the money laundering, do you?"

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