Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2019] NSWSC 1413

Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2019] NSWSC 1413

There appears to have been a legal error (Xiao error) during the applicant's sentencing, as the utilitarian value of the guilty plea was not taken into account. This justifies referral of the whole case to the Court of Criminal Appeal under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

Parties
Applicant: Kangmin Bae
Jurisdiction
Australia
Judgment Date
17 October 2019
Procedural Posture
Application Under Part 7 of the Crimes (appeal and Review) Act 2001 (nsw) / Referral to Court of Criminal Appeal
Outcome
Referral to Court of Criminal Appeal
Legal Topics
Sentence Inquiry, Guilty Plea Discount, Commonwealth Drug Offences, Mitigating Circumstances, Xiao Error
Criminal Law Sentence Inquiry Guilty Plea Discount Commonwealth Drug Offences Mitigating Circumstances Xiao Error

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Parties

Kangmin Bae

Applicant

Procedural Posture

Application Under Part 7 of the Crimes (appeal and Review) Act 2001 (nsw) / Referral to Court of Criminal Appeal

Legal Issues

  1. 1 Whether the sentencing judge failed to take into account the utilitarian value of the applicant's guilty plea (Xiao error)
  2. 2 Whether there appears to be a doubt or question as to the use of mitigating circumstances in sentencing

Ratio Decidendi

There appears to have been a legal error (Xiao error) during the applicant's sentencing, as the utilitarian value of the guilty plea was not taken into account. This justifies referral of the whole case to the Court of Criminal Appeal under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

Court Disposition

Referral to Court of Criminal Appeal

Orders

  • The whole of the case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).