Application by Matias Eduardo Cicero Olivares pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   JOHNSON J: The Applicant, Matias Eduardo Cicero Olivares, makes application under Part 7 Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”) seeking referral of his case to the Court of Criminal Appeal to be dealt with as an appeal against sentence.

Background to Application

1. [2]

   On 9 October 2015, the Applicant was sentenced in the Sydney District Court to terms of imprisonment for offences (committed on 4 January 2014) of trafficking in a commercial quantity of a controlled drug, methamphetamine, contrary to s.302.2(1) Criminal Code (Cth) and dealing with money suspected to be proceeds of crime contrary to s.400.9(1A) Criminal Code (Cth).

2. [3]

   The maximum penalty for an offence under s.302.2(1) is imprisonment for life. The Applicant was sentenced for this offence to imprisonment for 15 years commencing on 3 January 2015 with a non-parole period of nine years to expire on 3 January 2024.

3. [4]

   The maximum penalty for an offence under s.440.9(1A) is imprisonment for two years. The Applicant was sentenced for this offence to imprisonment for one year commencing on 4 July 2014.

4. [5]

   Accordingly, the total effective sentence comprised imprisonment for 15 years and six months commencing on 4 July 2014 and expiring on 3 January 2030 with a non-parole period of nine years and six months expiring on 3 January 2024.

5. [6]

   On 2 December 2016, the Court of Criminal Appeal dismissed an appeal against sentence brought by the Applicant: Cicero Olivares v R [2016] NSWCCA 270.

The Present Application

1. [7]

   The Applicant seeks referral of the whole of his case to the Court of Criminal Appeal under s.79(1)(b) CAR Act upon the basis that the sentencing Judge did not have regard to the utilitarian value of his guilty pleas in accordance with the principles stated subsequently by the Court of Criminal Appeal in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.

2. [8]

   In making this application, the Applicant seeks to follow the pathway adopted in Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 1413, which saw referral to the Court of Criminal Appeal which upheld the appeal and resentenced Mr Bae: Bae v R [2020] NSWCCA 35.

3. [9]

   The Commonwealth Director of Public Prosecutions did not seek to make any submissions with respect to the application. It remains a matter for the Court to determine whether an order for referral should be made.

4. [10]

   An application under s.78 CAR Act is not a judicial proceeding and, in determining the application, the Court exercises administrative power: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [124].

5. [11]

   On a s.78 application, the question is whether the Applicant can satisfy the s.79(2) gateway test of whether there “appears” to be a doubt or question (in contrast as to whether there is actually a doubt or question) as to any mitigating circumstance which extends to an error of law in the sentencing process: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 at [52]; Buttrose v Attorney General of NSW (2015) 324 ALR 562; [2015] NSWCA 221 at [16]-[17], [26].

6. [12]

   An inquiry may not be directed under s.79(1)(a) CAR Act with respect to Commonwealth offences: Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143; Application of Chidiac [2015] NSWSC 157 at [19]-[20].

7. [13]

   Although direction of an inquiry is not open, there is no impediment to the Court referring a case to the Court of Criminal Appeal under s.79(1)(b) CAR Act to be dealt with as an appeal. That is the order which the Applicant seeks in this case.

Approach to the Applicant’s Guilty Pleas on Sentence in the District Court

1. [14]

   The Applicant was sentenced in the Sydney District Court on 9 October 2015. In sentencing the Applicant, the sentencing Judge had regard to principles applicable to an offender’s pleas of guilty to Commonwealth offences in accordance with the law as it stood prior to the decision of the Court of Criminal Appeal in Xiao v R.

2. [15]

   The Applicant did not enter his guilty pleas until the day after the trial was due to commence, but had not in fact commenced.

3. [16]

   In accordance with usual practice at that time, the Crown made submissions at the sentencing hearing with respect to the Applicant’s pleas of guilty by reference to decisions including Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247. The Crown said:

4. [17]

   When sentencing the Applicant, her Honour acted on the Crown submissions and said with respect to the pleas of guilty (ROS12-13):

5. [18]

   No quantified discount was allowed for the Applicant’s pleas of guilty.

6. [19]

   In Cicero Olivares v R, the Court of Criminal Appeal said at [15]:

The Principles in Xiao v R

1. [20]

   A number of decisions of the Court of Criminal Appeal have addressed the question of Xiao v R error.

2. [21]

   In Bae v R, the Court said at [53]-[57]:

3. [22]

   What was said in Bae v R has been applied in subsequent decisions including Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [60] and Betka v R [2020] NSWCCA 191 at [57]-[59].

4. [23]

   It is appropriate to note, as well, an amendment to s.16A(2)(g) Crimes Act 1914 (Cth) effected in 2020. In Small v R [2020] NSWCCA 216, the Court said at [71]-[73]:

Decision

1. [24]

   For the purpose of determining the present application, it is sufficient to observe that there appears to be a doubt or question concerning the sentencing Judge’s approach to the Applicant’s guilty pleas in that her Honour (understandably given the then state of the law) did not have regard to the utilitarian value of the Applicant’s pleas of guilty.

2. [25]

   The doubt or question appears to arise (at least) from the following features of the sentencing remarks:

3. [26]

   As with the sentencing decision in Bae v R, there appears to have been a Xiao v R error in the sentencing of the Applicant in 2015 which was not addressed on appeal to the Court of Criminal Appeal in 2016. Accordingly, it appears that there is a doubt or question as to the sentence passed upon the Applicant.

4. [27]

   I am satisfied that, pursuant to s.79(1)(b) Crimes (Appeal and Review) Act 2001 (NSW), the whole of the Applicant’s case should be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence.

5. [28]

   Accordingly, I direct that: