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Court of Criminal Appeal 1 March 2019

Ge v R

[2019] NSWCCA 41

Drugs

Citation: Ge v R [2019] NSWCCA 41
Court: Court of Criminal Appeal, NSW
Date: 1 March 2019
Judges: Hoeben CJ at CL, Davies J, Button J

Background

The appellant was a Chinese national who had come to Australia to study a Master of Accounting degree. Facing mounting debts, he agreed to accept delivery of a consignment declared as "folding buckets" that concealed 8.33 kilograms of pure ephedrine, a precursor chemical used in manufacturing amphetamines. He was intercepted by Australian Border Force officers at a nearby service station shortly after taking possession of the package.

The appellant pleaded guilty to importing a commercial quantity of a border controlled precursor, contrary to s 307.11(1) of the Commonwealth Criminal Code, an offence carrying a maximum of 25 years' imprisonment. At the time of the offence, he was serving a suspended sentence for dishonest obtaining of a financial advantage, and that sentence was revoked upon his re-sentencing.

Acting Judge Delaney in the District Court at Parramatta sentenced him to 7 years' imprisonment with a non-parole period of 4 years and 3 months for the import offence. The appellant sought leave to appeal, arguing in particular that the sentencing judge had failed to give any discount for the utilitarian value of his early guilty plea.

  • Whether the sentencing judge erred by failing to take into account the utilitarian value of the guilty plea when sentencing for a Commonwealth offence, in light of the subsequent decision in Xiao v R (2018) 96 NSWLR 1
  • Whether the sentencing judge erred by failing to account for the more onerous nature of custody experienced by a foreign national
  • Whether the sentence imposed was manifestly excessive having regard to the objective and subjective circumstances

Decision

The Crown conceded Ground 1, acknowledging that the sentencing judge had not applied a discount for the utilitarian value of the guilty plea. This reflected the then-current understanding of how Commonwealth sentencing worked, but the Court of Criminal Appeal's subsequent decision in Xiao v R had clarified that such a discount is appropriate when sentencing for Commonwealth offences. Button J accepted the concession and held it constituted a material error requiring a full exercise of sentencing discretion afresh, rather than a mere corrective adjustment.

On resentencing, Button J assessed the objective seriousness of the offending as below the mid-range: the appellant was a trusted member of the importation syndicate and his role was significant, but the offence fell short of the most serious examples before the courts. The sentencing judge's favourable subjective findings were preserved, including early guilty plea, genuine remorse, low prospect of reoffending, and efforts at rehabilitation. Button J also accepted that imprisonment had been and would continue to be a particularly isolated and difficult experience for the appellant.

Button J adopted a starting point of 8 years and 6 months and applied a 25% discount for the utilitarian value of the guilty plea, arriving at a head sentence of 6 years and 4 months. He set a non-parole period of 3 years and 6 months, reflecting the favourable features of the case. The Court was unanimous in its agreement with Button J's reasons and proposed orders.

Orders Made

  • Leave to appeal granted
  • The sentence imposed by Acting Judge Delaney on 25 September 2017 was quashed
  • In substitution, a head sentence of 6 years and 4 months imposed, commencing 24 August 2016 and expiring 23 December 2022
  • Non-parole period of 3 years and 6 months, expiring 23 February 2020
  • First eligible date for release to parole: 23 February 2020

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following Xiao v R, the utilitarian value of a guilty plea must be explicitly reflected in the sentence for a Commonwealth offence; failing to do so constitutes a material sentencing error.
  • A material error of this kind calls for a full resentencing exercise (applying the approach in Kentwell v R), rather than a discrete corrective adjustment to the sentence (as described in Lehn v R).
  • Where the Crown concedes both error and its materiality, the appellate court will proceed to exercise the sentencing discretion afresh across all relevant grounds, rather than determining each ground separately.
  • A 25% discount for the utilitarian value of an early guilty plea was applied in the resentencing, with the Crown not contesting that figure before the Court.
  • Subjective features including genuine remorse, early plea, good prospects of rehabilitation, and the particular hardship of custody as a foreign national remain relevant considerations on Commonwealth sentences, even though the NSW statutory discount regime does not apply directly.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, s 307.11(1)
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 98(3)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238