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Court of Criminal Appeal 20 April 2018

Jinde Huang aka Wei Liu v R

[2018] NSWCCA 70

Also reported as (2018) 272 A Crim R 266
DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL FEDERAL OFFENCES ERROR ESTABLISHED APPLICANT RESENTENCED CRIMINAL LAW

Citation: Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 20 April 2018
Judge(s): Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J, Bellew J

Background

The applicant pleaded guilty to two Commonwealth offences: a serious drug importation offence under s 307.1(1) of the Criminal Code 1995 (Cth) and a money laundering offence under s 400.9(1). He was sentenced in the District Court of NSW in March 2016.

At sentencing, the judge allowed a discount for the guilty pleas but characterised them largely as a recognition of the inevitable, given the strength of the Crown case. The judge expressed the discount as a range rather than a specific percentage and made no explicit reference to the utilitarian value of the pleas as a separate sentencing consideration.

The applicant sought leave to appeal against sentence on multiple grounds, including that the sentencing judge failed to take into account the utilitarian value of the guilty pleas and erred in expressing the discount as a range.

  • Whether the sentencing judge erred by failing to have regard to the utilitarian value of the guilty pleas when sentencing for Commonwealth offences
  • Whether expressing a guilty plea discount as a range, rather than a specific percentage, constitutes an error
  • Whether the modest level of discount given was within the available range, given the pleas were entered in the face of a strong Crown case
  • What resentencing was appropriate following any established error

Decision

The Court allowed the appeal on two grounds. First, the sentencing judge made no reference to the utilitarian value of the guilty pleas. The Court found it likely that utilitarian value was therefore not taken into account, which constituted an independent error regardless of whether the overall discount might otherwise have been adequate.

On the second ground, a majority of the Court held that expressing a discount as a range, rather than a precise percentage, is itself an error. Bathurst CJ summarised the position clearly: specifying a range prevents both the offender and the Court of Criminal Appeal from being confident that an appropriate specific discount was in fact applied.

The Court confirmed, following Xiao v R [2018] NSWCCA 4, that sentencing judges dealing with Commonwealth offences are entitled, and indeed required, to take the utilitarian value of a guilty plea into account. The utilitarian benefit of avoiding a contested trial does not always carry the same weight as the subjective willingness to facilitate the course of justice, and both considerations may need to be reflected in the sentence.

On resentencing, the Court applied a 20% discount for the drug importation offence (where the plea was entered at an early stage) and a 10% discount for the money laundering offence (where the plea was entered effectively one business day before trial). A small degree of accumulation between the two sentences was imposed to reflect the separate nature of the offending.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentences imposed in the District Court on 29 March 2016 quashed
  • For the s 400.9(1) offence: imprisonment for 1 year and 6 months, commencing 18 December 2013 and expiring 17 June 2015
  • For the s 307.1(1) offence: imprisonment for 13 years, commencing 18 June 2014 and expiring 17 June 2027
  • Total term: 13 years and 6 months, commencing 18 December 2013 and expiring 17 June 2027
  • Single non-parole period of 8 years and 6 months, commencing 18 December 2013 and expiring 17 June 2022

Key Takeaways

  • Utilitarian value of a guilty plea is a mandatory consideration in Commonwealth sentencing: failing to take it into account constitutes legal error, even where the sentencing judge does consider the offender's willingness to facilitate the course of justice.
  • A discount expressed as a range of percentages, rather than a specific figure, is an error in Commonwealth sentencing. Neither the offender nor an appellate court can be confident that a specific appropriate discount was actually applied.
  • While it is desirable that the precise percentage discount be disclosed in the interests of transparency, the Court of Criminal Appeal confirmed (following Xiao v R) that failure to state the percentage does not of itself constitute error.
  • Utilitarian value and subjective willingness to facilitate the course of justice are conceptually distinct. The two considerations ordinarily overlap, but the utilitarian benefit of avoiding a trial may carry different mitigating weight from the subjective circumstances of the offender.
  • Bathurst CJ's summary of principles provides a clear framework for sentencing judges: take utilitarian value into account (mandatory), disclose the discount if possible (desirable), and always specify a single precise percentage rather than a range (specifying a range is an error).

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 307.1(1), 400.9(1)
- Crimes Act 1914 (Cth), s 16A

Cases:
- Xiao v R [2018] NSWCCA 4
- Director of Public Prosecutions (Cth) v Thomas (2016) 347 ALR 275; [2016] VSCA 237
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Hili v R (2010) 242 CLR 520; [2010] HCA 45
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Knight; R v Biuvanua (2007) 176 A Crim R 338; [2007] NSWCCA 283
- R v Burton [2008] NSWCCA 128
- Ayache v R [2013] NSWCCA 41
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Yuksel v R [2010] NSWCCA 65
- Ghobrial v R [2012] NSWCCA 221
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353