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Court of Criminal Appeal 28 November 2018

Kuo v R; Huang v R; Shih v R

[2018] NSWCCA 270

Drugs
CRIMINAL LAW SENTENCE APPEALS THREE APPLICANTS 142KGS IN QUANTITY NEED TO RE SENTENCE

Citation: Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 28 November 2018
Judges: Hoeben CJ at CL; Davies J; Hamill J

Background

Three applicants each pleaded guilty to attempting to possess a commercial quantity of methamphetamine (142 kilograms of pure drug) at Sydney in February 2014. They had been part of an elaborate drug syndicate that used a sham sporting goods store as a front for the importation, with the methamphetamine concealed inside kayaks shipped from China. All three were arrested on 11 February 2014 and had been in custody since that date.

At first instance, the sentencing judge imposed terms of 27 years imprisonment (with an 18-year non-parole period) on the first applicant, and 22 years imprisonment (with non-parole periods of 14 years and 6 months) on each of the other two. A co-offender who had proceeded to trial rather than plead guilty received a total effective sentence of 23 years with a 15-year non-parole period. The three applicants sought leave to appeal their sentences.

The Crown conceded at the appeal hearing that the sentencing judge had erred by failing to take into account the utilitarian value of the guilty pleas. That concession meant re-sentencing was required in all three matters.

  • Whether the sentencing judge erred by failing to apply any discount for the utilitarian value of the guilty pleas
  • Whether the sentences were manifestly excessive
  • Whether the applicants were left with a justifiable sense of grievance arising from disparity with the sentence imposed on the co-offender who went to trial
  • Whether the sentencing judge erred by treating financial gain as an aggravating factor (raised by one applicant)
  • Whether the sentencing judge erred by treating the involvement of methamphetamine (as opposed to another border controlled drug) as making the offending more serious, contrary to the principle in Adams v The Queen

Decision

The Crown's concession that the sentencing judge had failed to apply any utilitarian discount for the guilty pleas was determinative. That error alone required the Court to re-sentence all three applicants. The Court noted that the pleas, while entered at a late stage just before trial, still carried some utilitarian value in saving court time and resources, and that value had to be reflected in the sentence.

On the question of roles within the syndicate, the Court accepted that the three applicants occupied different positions. One applicant was found to have played a more significant organisational role, warranting a higher sentence than his co-applicants. The Court relied substantially on one applicant's evidence about the respective roles when assessing the relative culpability of each person.

On the disparity issue, the Court examined how the applicants' sentences compared to that of the co-offender who had been convicted after trial. While that co-offender had faced additional charges and conducted a trial (attracting no guilty plea discount), she was a true first offender and her additional offences arose from the same course of conduct involving smaller quantities. The Court concluded that proportionality and equal justice required the sentences for the applicants to sit at a somewhat lower level than the total effective sentence imposed on the co-offender.

The Court rejected the submission that financial gain had been wrongly treated as an aggravating factor, and found no error in the general approach to that question. On the Adams point, the Court considered the circumstances carefully but ultimately the re-sentencing exercise rendered those subsidiary grounds less determinative of the outcome.

Orders Made

  • Leave to appeal granted in all three matters; all appeals allowed; original sentences quashed
  • Kuo: Non-parole period of 12 years (commencing 11 February 2014, expiring 10 February 2026), balance of term of 7 years (expiring 10 February 2033)
  • Huang: Non-parole period of 12 years (commencing 11 February 2014, expiring 10 February 2026), balance of term of 7 years (expiring 10 February 2033)
  • Shih: Non-parole period of 14 years (commencing 11 February 2014, expiring 10 February 2028), balance of term of 8 years (expiring 10 February 2036)

Key Takeaways

  • A sentencing judge's failure to consider the utilitarian value of a guilty plea constitutes legal error requiring re-sentencing, even where the plea was entered late, on the eve of trial.
  • The Court of Criminal Appeal confirmed that the utilitarian value of a plea remains relevant regardless of its timing, though the extent of the discount properly reflects when in the proceedings the plea was entered.
  • Disparity between co-offenders does not automatically establish error, but a court on re-sentence must ensure that differences in sentence are explicable by reference to identified distinctions in culpability, criminal history, and the course of the proceedings.
  • Where one co-offender proceeded to trial and another pleaded guilty, the absence of a guilty plea discount for the former and the application of one for the latter can legitimately produce different sentence lengths, provided proportionality is maintained across the group.
  • Assessing relative roles within a drug syndicate is a factual question, and where one applicant's evidence about those roles is accepted, it can properly justify material differences in sentence between co-offenders charged with the same offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A
- Criminal Code (Cth), ss 307.1(1), 307.3(1), 307.5(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(o)

Cases
- Adams v The Queen [2008] HCA 15; 234 CLR 143
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Ibrahim v R [2016] NSWCCA 6
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Lau v Regina [2014] NSWCCA 179
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Regina v Franze [2013] VSC 421
- Teng Lam Tan and Wong v R [2009] 22 VR 706
- Thammavongsa v Regina [2015] NSWCCA 107
- Wang v R [2010] NSWCCA 319
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
- Xiao v R [2018] NSWCCA 4