Olivares v R

Court of Criminal Appeal (NSW)|2021-06-09|Before: McCallum JA, Adams J, Cavanagh J, Johnson J, Ward JA, Fagan J, Callum JA

Solicitors: Legal Aid NSW (Applicant) Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2014/198435 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 09 October 2015 Before: Culver DCJ File Number(s): 2014/198435

Judgment

McCALLUM JA: I agree with Cavanagh J.
N ADAMS J: I agree with Cavanagh J.
CAVANAGH J: This matter has been referred to this Court by Johnson J pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) to be dealt with as an appeal against sentence (Application by Matias Eduardo Cicero Olivares pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 96).

Background facts

On 9 October 2015, the appellant was sentenced by her Honour Judge Culver DCJ in the Sydney District Court in respect of two offences to which he had entered pleas of guilty being: 1. On 4 July 2014 at Sydney in the State of New South Wales, he did traffic in a substance, the substance being a controlled drug, namely methamphetamine, and the quantity trafficked being a commercial quantity. Contrary to subsection 302.2(1) of the Criminal Code (Law Part Code 58432). 1. On 4 July 2014 at Sydney in the State of New South Wales, he did deal with money or other property, it being reasonable to suspect that such money or other property was proceeds of crime and at the time dealing the value of the money or other property was less than $100,000. Contrary to subsection 400.9(1A) of the Criminal Code (Law Part Code: 71333).
In respect of the first offence, the appellant was sentenced to 15 years imprisonment commencing on 4 July 2014 and expiring on 3 July 2029 with a non-parole period of 9 years and 6 months.
In respect of the second offence, the appellant was sentenced to 12 months imprisonment also to date from 4 July 2014.
The appellant originally sought leave to appeal in respect of the sentence imposed in respect of the first offence only on the grounds that the sentence was manifestly excessive.
On 2 December 2016, the Court (per Ward JA, Fagan J and N Adams J), granted leave to appeal but dismissed the appeal for the reasons set out in that judgment [2] .
No issue was raised about the sentencing judge's consideration of any discount that might have been imposed to reflect the value of the plea of guilty in accordance with s 16A(2)(g) Crimes Act 1914 (Cth) ("the Crimes Act").
At some point, the possibility that the sentence imposed upon the appellant may have been affected by Xiao error was identified. It is not clear how the appellant came to be aware of the possible error but Mr Anderson, who appeared on behalf of the appellant, informed the Court that the Legal Aid Commission had been attempting to identify sentence matters which may have been affected by Xiao error. Indeed, Mr Anderson provided the Court with a list of post Xiao appeals. This is the 49th such appeal.
Mr Anderson said that this was one of the last matters to be dealt with.
In any event, in 2020, the appellant made application under Part 7 of the Crimes (Appeal and Review) Act seeking referral of his case to this Court. The application was dealt with on the papers by Johnston J [3] .
As identified by Johnson J, on original sentencing, the Crown had submitted that it was impermissible to give a discount to a federal offender upon the objective basis that the plea had saved the community the expense of a contested hearing. The sentencing judge accepted the Crown's submissions and did not afford any discount for the appellant's plea of guilty.
It is not necessary for this Court to again address the question of the Xiao error. Reference can be made to cases such as Bae v R [4] . It is only necessary to say that contrary to the approach of the sentencing judge (which was based on authority current at the time of the sentence) it is permissible to take account of the utilitarian value of a guilty plea for the purposes of s 16A(2)(g) of the Crimes Act.
It is an objective factor to be considered and preferably quantified [5] .
On sentencing the appellant on 15 October 2015, her Honour did not consider the utilitarian value of the earlier plea but rather considered whether a discount would be available on the following basis: "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."
The respondent agrees that, having regard to Xiao, the sentencing judge should have considered whether to apply a discount on account of the utilitarian value of the early plea.
For the reasons I have identified, the ground of appeal is established and there must be re-sentencing.

Circumstances of offending

For the purposes of re-sentencing, I adopt the findings of fact made by the sentencing judge, which were based on agreed facts.
The appellant is a dual Spanish-Mexican citizen. He holds passports for both countries. He arrived in Australia on 16 June 2014 from London via Singapore. He entered Australia using his Spanish passport on a tourist visa. He indicated that the length of his stay would only be 8 days and he was here for a holiday.
On 3 July 2014, the Australian Crime Commission commenced the lawful interception of a telephone service used by the appellant. Telephone calls and SMS messages were intercepted. Communications between the appellant and a Mr Tony Vu were intercepted.
On 4 July 2014, the appellant was arrested. A search warrant was conducted in his room at the Mercure Hotel.
Importantly, for the purposes of this re-sentencing, the appellant made immediate admissions and, on one view, offered assistance to the Police when questioned when he stated: 1. if Police looked in the bathroom ceiling they would find packages; 2. he thought there were drugs in the packages; 3. he knew it was something illegal but he did not know what; 4. he put the packages in the bathroom ceiling; and 5. there were eight packages in total concealed in the bathroom ceiling.
Police located the packages concealed in the bathroom ceiling as well as AUD$60,000. Police also located a $5 note with the serial number with the letter "J" marked in pen under the serial number and another $5 note with the letter "P" marked in pen under the serial number.
Again, when questioned, the appellant identified the purposes of the markings on the $5 note (being as a means of identifying other persons involved in the importation scheme).
On testing of the white powder, it was established that it was methamphetamine with a gross weight of 7.7978 kilograms and a pure weight of 6.3356 kilograms.
In his recorded interview of 4 July 2014, the appellant made admissions to the effect that: 1. he received an offer to come to Australia; 2. he met a man in Australia called Lelo who gave him $6,000 for expenses and a mobile phone and a SIM card; 3. the next time he met Lelo he gave him a bag containing 8 packages of drugs; 4. he was told that he would receive a phone call to meet people to offload the drugs but had been waiting 2 weeks; 5. he was offered USD$10,000 to travel to Australia and give the 8 packages to someone else; 6. he thought the 8 packages contained cocaine, but he was not sure; 7. he met another man whose name he does not know and who gave him approximately AUD$60,000; and 8. the two mobile phones in his possession had been given to him by the man named Lelo.
The findings of the sentencing judge as to the role of the appellant are again not in dispute and have been conveniently summarised by the respondent as follows [6] : a. he was part of an international (inferentially, drug supply) syndicate (paragraphs 7, 19, 21); b. the syndicate involved a degree of planning and a number of participants (paragraphs 7, facts generally); c. he was not at the apex of the syndicate, but "clearly enjoyed the trust of the syndicate in that he received a significant quantity of drugs and cash" (paragraph 21); d. he was a vital go-between to facilitate the trafficking of the drugs (facts generally); e. he had travelled to this country in order to engage in the criminality (paragraphs 19); f. he met with Lelo and Vu (paragraphs 9, 10, 11); g. he concealed the drugs (paragraphs 13-16); h. he received the money (paragraphs 16, 21); and i. he made phone calls in order to understand the communication code (paragraphs 7, 8, 10, 17, 18, 19).
Her Honour found that the appellant was not at the apex of the syndicate but was a necessary part of the syndicate and was instrumental in an attempt to ultimately achieve the ends of that syndicate.
The sentencing judge held that the objective seriousness of the offending was of a high order. The appellant does not take any issue with that finding. I agree with and adopt it for the purposes of resentencing.

The appellant's submissions on resentencing

The appellant submits that he is entitled to a discount on account of the utilitarian value of the guilty plea and a further discount because of assistance given to the authorities.
Assistance is a relevant consideration under s 16A(2)(h) of the Crimes Act. The appellant submits that his assistance was significant.
The appellant submits that this Court would apply a discount of 10% on account of the plea of guilty (it being made only on the second day of the trial) and a further discount of 5% to 10% on account of his assistance to the Police.
Further, the appellant relies on 4 affidavits for the purposes of re-sentence being: 1. Affidavit of Matias Eduardo Cicero Olivares dated 17 October 2016; 2. Affidavit of Matias Cicero Olivares dated 25 May 2021; 3. Affidavit of Frances Anne Low dated 17 October 2016; and 4. Affidavit of Stephen Eccleshall dated 26 May 2021.
The appellant submits that the content of these affidavits tends to confirm the original finding of the sentencing judge that he had good prospects of rehabilitation and that he has been well-behaved since being in custody.
The appellant also relies on other cases and JIRS statistics, accepting the limitations to which such cases and statistics can be put [7] .
The appellant accepts that having regard to the finding of special circumstances by the sentencing judge, the ratio of 60% for the non-parole period was appropriate.

The Respondent's position

The respondent accepts that a discount should be applied for the utilitarian value of the plea but says that no discount should be allowed on account of any assistance to authorities.
The respondent submits that the appellant did not provide authorities with any names of co-offenders and that the assistance does not rise above making admissions as to matters that would inevitably have been uncovered by the Police in any event.
The respondent's final submission is as follows [8] : It is submitted that the conceded Xiao error in the sentencing process did not have the effect of wrongly elevating the sentence imposed, rendering it excessive in the circumstances. Even accounting for the mitigating factors, the objective seriousness of the appellant's offending, found to be of a high order, is such that "no lesser penalty is warranted and should have been passed". In particular, given the 60% ratio afforded, it is submitted that the non-parole period imposed at first instance reflects the minimum period of actual incarceration which is warranted in all the circumstances of the case.

Re-sentence

I must undertake the sentencing task afresh [9] . In doing so I have regard to all of the material relied upon on the original sentencing hearing, as well as the further material relied upon on re-sentence.
Over the past 7 years whilst in custody, the appellant has done his best to take advantage of the courses offered and perform such work as he could. He has not been subject to any disciplinary breaches. Just like the original sentencing judge, I accept that his prospects of rehabilitation are good. He has demonstrated remorse.
Unfortunately, whilst he has been in custody, he has suffered considerable distress in losing contact with his wife and two children for approximately a year in 2019 and then discovering that his two children had been placed in State care in Spain. His wife has been admitted to hospital for psychiatric treatment. His mother died whilst he was in custody. In all these circumstances, his time incarcerated has been particularly onerous.
However, it is important to emphasise that the appellant was aware of what he was doing when he entered this country for the express purpose of trafficking in drugs. Whilst he did so, in part, because of his financial circumstances back home, he did so for financial gain. Any sentence must reflect the overall criminality of the offending and recognise the importance of general deterrence.
I am satisfied that the appellant is entitled to a discount on sentence having regard to the utilitarian value of his plea. His plea was not early and I only allow a 10% discount.
I am satisfied that the appellant is entitled to a further discount of 5% on account of his assistance to the authorities. As set out in s 16A(2)(h), the Court must take into account the degree to which an offender has cooperated with law enforcement agencies in the investigation of the offence or of other offences, although as is made clear in Aboud v R [10] , not every form of assistance by an offender must result in the application of a specifically quantified discount [11] and indeed there may be circumstances in which no specific discount is identified.
In Webber v R [12] , the Court accepted that a discount of 5% was appropriate having regard to the cooperation of the offender with the authorities. In that matter, the appellant provided the names of persons involved in drug importation. Nevertheless, the fact that the appellant's cooperation with authorities did not include the disclosure of other person's identities does not of itself disentitle him to some discount.
I accept the appellant's submission that he provided considerable cooperation to the Police immediately prior to, during and after his arrest. When the search warrant was executed, he informed the Police that there were packages sitting in the bathroom ceiling so that the Police may uncover them. He provided extensive information as to the circumstances of involvement and the process and mechanics by which he was supposed to be passing on the drugs. I am satisfied that he is entitled to a small discount on account of this assistance which I would assess at 5%.
Despite the availability of discounts both on account of the guilty pleas and assistance to authorities, the respondent submits that, on resentencing, this Court would accept that no lesser sentence is warranted in law. Such a result is difficult to accept when it is not disputed that there should be some discount on account of the utilitarian value of the plea. No lesser sentence could be warranted only if this Court took the view that a higher sentence than originally imposed without any discount should be imposed. Indeed, the original sentence would need to have been at the bottom of the range.
It could not be said that this sentence was at the bottom of the range, having regard to the JIRS statistics. Caution must be exercised in comparing sentences having regard to the differing facts and circumstances, but as was observed in Barbaro v R [13] , other cases may establish a range of sentences that have been imposed. The range identified in the JIRS statistics suggests that this sentence is at the high rather than the lower end of the range.
In that context the submission that no lesser sentence is warranted is, in effect, a submission that this court should start with a sentence at the top of the range (as recorded by JIRS). I do not accept that submission in the circumstances of this case.
I adopt the observations of Simpson JA in Aboud at [4] and [5] as follows: "4 The task of this Court in resentencing after error has been established in the sentencing process is, as stated in Kentwell v The Queen, to exercise its own sentencing discretion, independently of the sentence imposed at first instance. That task is not discharged by concluding that "no lesser sentence is warranted in law", which is simply wrong unless the sentence imposed lies at the bottom of the available range. As the High Court said in Kentwell, any sentence within an available range is "warranted in law". 5 The test stated by s 6(3) is a composite one, in two parts, the most important of which is the second - "and should have been passed", which was largely ignored in submissions to which reference was made in Davis and Thammavongsa. Sentencing is not an exact science and no one sentence can be said to be the correct sentence (as distinct from a correct sentence). Thus, any sentence that lies within the available range is "warranted in law". A lesser sentence than that imposed at first instance may, and often is, "warranted in law". It does not follow from that that the lesser sentence "should have been passed". That phrase implies that the established error in the sentencing process had the effect of wrongly elevating the sentence imposed, rendering the sentence excessive in the circumstances. Otherwise, it would not be possible to say that the other sentence "should have been passed".
The appellant comes before this Court only in respect of re-sentence in respect of the trafficking offence. Having regard to the discount for the guilty plea and for assistance to authorities, the appellant is entitled to a 15% discount. If not for that discount, I would have sentenced the appellant to a term of imprisonment of 13 years and 6 months. Having regard to that discount, I impose a sentence of 11 years and 6 months commencing on 4 July 2014 and expiring on 3 January 2026.
I specify a non-parole period of 60%. This means that the non-parole period would amount to 6 years and 10.8 months (which I round up to 11 months) commencing on 4 July 2014. The appellant would have been eligible for parole on 3 June 2021.
The orders I propose are: 1. Allow the appeal. 2. Quash the sentence imposed in the District Court. 3. In lieu thereof sentence the appellant to a term of imprisonment of 11 years and 6 months with a non-parole period of 6 years and 11 months commencing on 4 July 2014 and expiring on 3 June 2021. 4. Direct that the appellant be released immediately.

Endnotes

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
[2016] NSWCCA 270
[2021] NSWSC 96 at [16]
[2020] NSWCCA 35 at [53]-[57]
Xiao at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49] and [55]; Bae at [57]
Respondent's submissions, at par 6, a-i
Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]
Respondent's submissions, at par 42
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ)
[2021] NSWCCA 77
Aboud per Bellew J at [103]
[2020] NSWCCA 103
(2014) 253 CLR 58 at [40]-[41]

Amendments 23 June 2021 - At par [58] of the orders, where it formerly read '7 years and 11 months' it now reads '6 years and 11 months'. 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 June 2021

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