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6
Court of Criminal Appeal 6 April 2018

Obiekwe v R

[2018] NSWCCA 55

Drugs
CRIME APPEAL AGAINST SENTENCE XIAO V R [2018] NSWCCA 4 ERROR ESTABLISHED APPLICANT TO BE RE SENTENCED BY THIS COURT

Citation: Obiekwe v R [2018] NSWCCA 55
Court: Court of Criminal Appeal
Date: 6 April 2018
Judge(s): Payne JA; Johnson J; Campbell J

Background

The applicant pleaded guilty to importing a commercial quantity of methamphetamine (17.4 kilograms) into Australia, contrary to s 307.1 of the Criminal Code Act 1995 (Cth). The offence carries a maximum penalty of life imprisonment. In the District Court, the sentencing judge imposed 12 years' imprisonment with a non-parole period of 7 years, commencing from the date of custody in December 2014.

The applicant had played a central role in the importation at the Australian end of the operation. He used false identities and fictitious documentation to arrange the delivery of a sea cargo consignment disguised as "LED lamps," which concealed methamphetamine concealed inside air cylinders. The operation involved a significant degree of planning and deliberate concealment.

The applicant sought leave to appeal against his sentence, arguing that the sentencing judge had erred by failing to apply utilitarian considerations when granting a 10 per cent discount for his guilty plea.

  • Whether the sentencing judge erred by failing to take into account the utilitarian value of the applicant's guilty plea when granting the 10 per cent discount
  • If error was established, what the appropriate sentence should be upon re-sentencing by the Court of Criminal Appeal

Decision

The Court accepted that the sentencing judge had erred in her approach to the guilty plea discount. Following Xiao v R [2018] NSWCCA 4, decided by a five-member bench after the original sentencing, the Court confirmed that the utilitarian value of a guilty plea must be taken into account in addition to any subjective factors such as contrition or remorse. The Crown conceded the error, and the Court proceeded to re-sentence the applicant itself.

On re-sentencing, Payne JA (with Johnson and Campbell JJ agreeing) worked through the relevant factors under Part 1B of the Crimes Act 1914 (Cth), particularly s 16A. The applicant's role as the central Australian figure in the importation, the significant planning involved, and the serious nature of the offence all pointed to a substantial custodial sentence. The Court found that the 10 per cent discount for the guilty plea remained appropriate given the late stage at which it was entered, and that any utilitarian benefit was correspondingly modest.

The Court weighed mitigating factors in the applicant's favour: limited but genuine contrition evidenced by a letter and a psychologist's report, the absence of prior criminal history, exemplary conduct in custody, and strong prospects of rehabilitation. Against these, the Court emphasised the gravity of the offending, the deliberate planning, and the need for adequate punishment and deterrence.

After considering comparable sentences in other jurisdictions, the Court concluded that no lesser sentence was warranted in law. The original sentence of 12 years with a non-parole period of 7 years was confirmed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed
  • Sentence of 12 years' imprisonment with a non-parole period of 7 years confirmed, each to date from 4 December 2014

Key Takeaways

  • Following Xiao v R [2018] NSWCCA 4, the utilitarian value of a guilty plea must be factored into any discount separately from subjective considerations such as contrition or remorse; a sentencing judge who conflates the two commits a legal error.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that establishing a sentencing error does not automatically produce a more favourable outcome for an applicant: upon re-sentencing, the same sentence may be, and here was, reimposed.
  • Under s 16A(2)(g) of the Crimes Act 1914 (Cth), a late guilty plea still attracts some utilitarian discount, but the benefit is limited by the stage at which it is entered.
  • Where a sentencing court cannot identify the precise financial reward an offender received for participating in a drug importation, it is sufficient to find participation for profit without determining the exact amount.
  • Consistency in federal sentencing, as the High Court made clear in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520, does not require numerical equivalence between sentences across comparable cases.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.1
- Crimes Act 1914 (Cth), Part 1B, ss 16A(1), 16A(2)(a), (f), (g), (k), (m), (n)

Cases
- Xiao v R [2018] NSWCCA 4
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271
- R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R (Cth) v Yuan [2015] NSWCCA 198; 252 A Crim R 422
- Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365
- Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458
- Wang v R [2010] NSWCCA 319
- Saab v The Queen [2012] VSCA 165
- DPP (Cth) v Peng [2014] VSCA 128
- R v Constant [2016] SASCFC 87; 126 SASR 1
- R v Scott [2017] SASCFC 96
- R v Tam [2013] WASCSR 226