Diaz v R [2019] NSWCCA 216

Diaz v R [2019] NSWCCA 216

The Court held that, despite the applicant not raising Xiao error as a ground of appeal, it was established on the facts that the sentencing judge did not provide a utilitarian discount for the early plea of guilty, as now required by Xiao v R. This constituted an error warranting the Court to resentence the applicant, resulting in a slightly reduced head sentence and non-parole period.

Jurisdiction
Australia
Judgment Date
13 September 2019
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence; Appeal Decision and Resentencing
Outcome
Leave to appeal against sentence granted; appeal upheld; original sentence quashed; applicant resentenced.
Legal Topics
['appeal Against Sentence' 'attempted Importation of Commercial Quantity of Border Controlled Drug' 'utilitarian Discount for Plea of Guilty' 'xiao Error']
['criminal Law'] ['appeal Against Sentence' 'attempted Importation of Commercial Quantity of Border Controlled Drug' 'utilitarian Discount for Plea of Guilty' 'xiao Error']

Case Brief

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence; Appeal Decision and Resentencing

Legal Issues

  1. 1 ['Whether the sentencing court failed to provide the applicant with the appropriate utilitarian discount for a guilty plea under Xiao v R' 'Whether the sentence imposed was manifestly excessive' 'Whether the sentencing court erred in failing to take into account relevant subjective and parity factors' 'Whether alleged incompetence of defence counsel resulted in miscarriage of justice']

Ratio Decidendi

The Court held that, despite the applicant not raising Xiao error as a ground of appeal, it was established on the facts that the sentencing judge did not provide a utilitarian discount for the early plea of guilty, as now required by Xiao v R. This constituted an error warranting the Court to resentence the applicant, resulting in a slightly reduced head sentence and non-parole period.

Court Disposition

Leave to appeal against sentence granted; appeal upheld; original sentence quashed; applicant resentenced.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal upheld.' 'The sentence imposed by M L Williams SC DCJ on 27 January 2017 is quashed.' 'The applicant is sentenced to a head sentence of 9 years commencing on 6 November 2015 and expiring on 5 November 2024, with a non-parole period of 4 years 6 months, expiring on...