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Supreme Court 17 October 2019

Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

[2019] NSWSC 1413

Drugs
CRIMINAL LAW APPLICATION FOR INQUIRY INTO SENTENCE COMMONWEALTH DRUG IMPORTATION OFFENCES WHETHER XIAO ERROR

Citation: [2019] NSWSC 1413
Court: Supreme Court of New South Wales
Date: 17 October 2019
Judge: R A Hulme J

Background

The applicant was sentenced in 2013 in the District Court after pleading guilty to five Commonwealth drug importation offences, including aiding and abetting the importation of commercial quantities of cocaine and methylamphetamine, and a marketable quantity of heroin, totalling approximately 19.5 kg bulk weight. The sentencing judge imposed an overall sentence of 20 years' imprisonment with a non-parole period of 12 years.

In 2013, the sentencing judge applied a 15% discount to account for the guilty pleas, framing the reduction as recognition of the applicant's "willingness to facilitate the course of justice." The Court of Criminal Appeal dismissed an appeal against sentence in 2015, though the grounds of that appeal did not touch on the basis for the guilty plea discount.

The applicant later brought a Part 7 application under the Crimes (Appeal and Review) Act 2001 (NSW), arguing that developments in the law since sentencing, particularly the Court of Criminal Appeal's 2018 decision in Xiao v R, revealed a legal error in how his guilty plea discount was assessed.

  • Whether the sentencing judge in 2013 committed an error by failing to consider the "utilitarian value" of the applicant's guilty pleas when sentencing for Commonwealth offences, as later clarified in Xiao v R [2018] NSWCCA 4.
  • Whether that error, if established, creates an appearance of a doubt or question as to a mitigating circumstance sufficient to warrant referral under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW).
  • Whether the 15% discount already given on the basis of "willingness to facilitate the course of justice" was equivalent to, or different from, a discount for the utilitarian value of a guilty plea.

Decision

Prior to Xiao, the prevailing view in New South Wales was that Commonwealth offenders could receive a guilty plea discount only for their willingness to facilitate the course of justice, not for the utilitarian value of the plea itself. That understanding derived from Cameron v The Queen (2002) 209 CLR 339 and Tyler v The Queen [2007] NSWCCA 247. The sentencing judge and both counsel in 2013 proceeded on that basis, as the transcript of proceedings made clear.

In Xiao, a five-judge bench of the Court of Criminal Appeal held that s 16A(2)(g) of the Crimes Act 1914 (Cth) does permit a sentencing judge to take into account the utilitarian value of a guilty plea, overruling Tyler and its line of cases. The subsequent decision in Jinde Huang v R confirmed that failing to do so constitutes legal error.

Hulme J found that the transcript of the 2013 sentencing hearing revealed an approach consistent with the pre-Xiao error. The 15% discount and the utilitarian value discount are legally distinct concepts, and an offender may be entitled to a reduction on both bases. The applicant was denied the opportunity to contend for the additional utilitarian value component because of how the law was understood at the time.

On that basis, his Honour concluded that there appeared to be a "Xiao error" in the original sentencing, which was not remedied on appeal. Accordingly, an appearance of doubt or question as to the sentence arose under Part 7, warranting referral to the Court of Criminal Appeal.

Orders Made

  • The whole of the case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under s 5 of the Criminal Appeal Act 1912 (NSW).

Key Takeaways

  • A "Xiao error" arises where a sentencing court, when dealing with a Commonwealth offence, restricts the guilty plea discount to recognition of the offender's willingness to facilitate the course of justice and fails to separately consider the utilitarian value of the plea.
  • The utilitarian value of a guilty plea and the willingness to facilitate the course of justice are legally distinct mitigating considerations under Commonwealth sentencing law; an offender may be entitled to a discount under both heads.
  • Under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), it is sufficient to trigger referral to the Court of Criminal Appeal that there "appears" to be a doubt or question as to a mitigating circumstance; a conclusive finding of error is not required at this stage.
  • No criticism attached to the sentencing judge or counsel in 2013, as both were faithfully applying what the courts had declared the law to be at the time.
  • Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) provides a mechanism for review where post-sentencing developments in the law expose an error that was not, and could not have been, addressed on the original appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7, ss 78, 79(1)(a), 79(1)(b), 79(2)
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Criminal Code (Cth), ss 307.1(1), 307.2(1)
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1
- Jinde Huang v R [2018] NSWCCA 70; (2018) 272 A Crim R 266
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458
- Bae, Kangmin v R [2015] NSWCCA 133
- DPP (Cth) v Gow [2015] NSWCCA 208; (2015) 298 FLR 397
- DPP (Cth) v Thomas; DPP (Cth) v Wu (2016) 53 VR 546; [2016] VSCA 237
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562