R v Xavier [2023] NSWDC 528

R v Xavier [2023] NSWDC 528

Although the offence was at the very lowest end of objective seriousness and the offender had good rehabilitation prospects and genuine remorse, the offence was committed while he was on conditional liberty and general deterrence was significant. After allowing a 25% discount for the utilitarian value of the guilty plea and taking into account presentence custody and more onerous COVID-19 custody conditions, no sentence other than imprisonment was appropriate, but a fixed term of 4 months backdated to 21 December 2020 was sufficient.

Jurisdiction
Australia
Judgment Date
29 November 2023
Procedural Posture
Criminal Sentencing for Conceal Serious Indictable Offence Contrary to S 316(1), Crimes Act 1900 / Sentence After Guilty Plea in the District Court
Outcome
Garry Xavier was convicted and sentenced to a fixed term of imprisonment of 4 months, backdated to commence on 21 December 2020 and expire on 21 April 2021.
Legal Topics
['public Justice Offences' 'conceal Serious Indictable Offence' 'guilty Plea Discount' 'commonwealth Places' 'objective Seriousness' 'general Deterrence' 'conditional Liberty' 'rehabilitation' 'remorse']
['criminal Law' 'sentencing'] ['public Justice Offences' 'conceal Serious Indictable Offence' 'guilty Plea Discount' 'commonwealth Places' 'objective Seriousness' 'general Deterrence' 'conditional Liberty' 'rehabilitation' 'remorse']

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Procedural Posture

Criminal Sentencing for Conceal Serious Indictable Offence Contrary to S 316(1), Crimes Act 1900 / Sentence After Guilty Plea in the District Court

Legal Issues

  1. 1 ["What sentence should be imposed for the offender's plea of guilty to conceal serious indictable offence contrary to s 316(1), Crimes Act 1900." 'Whether the guilty plea discount was to be assessed under Division 1A of the Crimes (Sentencing Procedure) Act 1999 or under s 22 and common law principles because the offence was applied as Commonwealth law in a Commonwealth place.' "What weight should be given to objective seriousness, general and specific deterrence, the offender's conditional liberty, remorse, rehabilitation prospects, presentence custody and COVID-19 custody conditions."]

Ratio Decidendi

Although the offence was at the very lowest end of objective seriousness and the offender had good rehabilitation prospects and genuine remorse, the offence was committed while he was on conditional liberty and general deterrence was significant. After allowing a 25% discount for the utilitarian value of the guilty plea and taking into account presentence custody and more onerous COVID-19 custody conditions, no sentence other than imprisonment was appropriate, but a fixed term of 4 months backdated to 21 December 2020 was sufficient.

Court Disposition

Garry Xavier was convicted and sentenced to a fixed term of imprisonment of 4 months, backdated to commence on 21 December 2020 and expire on 21 April 2021.

Orders

  • ['Garry Xavier is convicted.' 'The offender is sentenced to a fixed term of imprisonment of 4 months to date from 21 December 2020 and to expire on 21 April 2021.']