Citation: Walsh v R (Cth) [2020] NSWCCA 182
Court: Court of Criminal Appeal, New South Wales
Date: 3 August 2020
Judges: Ward CJ in Eq; Wilson J (principal judgment); Ierace J
Background
The applicant pleaded guilty to conspiring to import a marketable quantity of a border controlled drug (cocaine) contrary to the Criminal Code (Cth). He was sentenced in the District Court on 21 December 2016 to nine years imprisonment with a non-parole period of five years. The conspiracy operated over approximately 18 months, involved 19 consignments intercepted locally, 42 that were not intercepted, and more than half a million dollars remitted to overseas suppliers.
The applicant played a significant role in the conspiracy: he directed a group of co-conspirators, liaised with international suppliers, tracked incoming shipments, collected consignments personally, and recruited others to remit funds. The sentencing judge accepted that the applicant had acted under non-exculpatory duress, was contrite, had an unblemished prior record, and had excellent prospects of rehabilitation.
Approximately 14 months after sentence was imposed, the Court of Criminal Appeal handed down its decision in Xiao v R [2018] NSWCCA 4, which changed the approach to plea of guilty discounts in Commonwealth sentencing matters. The applicant then sought leave to appeal out of time, arguing that the sentencing judge had committed a "Xiao error" by failing to give full weight to the utilitarian value of his guilty plea.
Legal Issues
- Whether the sentencing judge erred by failing to take into account the utilitarian value of the applicant's guilty plea, as subsequently required by Xiao v R
- Whether leave to appeal out of time should be granted
- Whether, error having been established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW)
Decision
The Crown conceded the Xiao error, and the Court accepted that concession as properly made. Before Xiao, sentencing courts dealing with Commonwealth offences had followed authority (including Lee v R [2012] NSWCCA 123) holding that a guilty plea could be recognised only as reflecting willingness to facilitate justice, and not for saving the cost of a contested hearing. Xiao overruled that line of authority, confirming that sentencing judges in proceedings governed by s 16A of the Crimes Act 1914 (Cth) are entitled to give weight to the utilitarian value of a guilty plea. The sentencing judge, applying the pre-Xiao approach, had discounted the sentence by around 25 per cent without reference to utilitarian value, and that constituted error.
Having established error, the Court turned to re-sentence the applicant. It assessed the objective gravity of the offence as significant: the conspiracy was extensive in duration, involved a large number of overt acts, and the applicant's role was integral and pivotal, exceeding the roles of his co-conspirators. The total pure weight of cocaine intercepted was 1,154.3 grams, with a street value of approximately $780,000, and the unintercepted consignments substantially enlarged the actual scale of the importation.
The Court also gave considerable weight to the applicant's strong subjective case. The evidence of rehabilitation achieved during the course of the sentence was described as impressive. Nevertheless, the Court affirmed that general deterrence must be given "chief weight" in drug importation matters, citing Wong v The Queen (2001) 207 CLR 584, because of the difficulty of detection and the serious social consequences of such offending.
Balancing all of these factors, including the corrected approach to the utilitarian value of the plea, the Court imposed a sentence of nine years imprisonment but reduced the non-parole period from five years to four years and nine months, reflecting the error established below.
Orders Made
- Time to bring an application for leave to appeal extended to 22 April 2020
- Leave to appeal granted
- Sentence imposed on 21 December 2016 by Jeffreys DCJ quashed
- In lieu, the applicant sentenced to nine years imprisonment, commencing 12 January 2016 and expiring 11 January 2025, with a non-parole period of four years and nine months, expiring 11 October 2020 (the date of eligibility for parole)
Key Takeaways
- The Court of Criminal Appeal confirmed that Xiao v R [2018] NSWCCA 4 applies to sentences imposed before that decision was handed down, and failure to account for the utilitarian value of a guilty plea in Commonwealth sentencing proceedings constitutes appealable error.
- A sentence may still be quashed and re-imposed on appeal even where the head term is unchanged; here, error was corrected by reducing the non-parole period by three months while leaving the total sentence at nine years.
- Under s 16A of the Crimes Act 1914 (Cth), sentencing judges are entitled, and required, to treat the utilitarian value of a guilty plea as a discrete and legitimate consideration, distinct from the recognition of contrition or cooperation.
- In re-sentencing for conspiracy to import a border controlled drug, the Court affirmed that general deterrence must be accorded "chief weight" having regard to the difficulty of detecting such offences and their social consequences.
- Strong evidence of rehabilitation achieved during imprisonment is a relevant and weighty consideration on re-sentence, though it does not displace the primacy of general deterrence in serious drug importation cases.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), ss 307.2(1) and 11.5(1)
- Crimes Act 1914 (Cth), s 16A
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Lee v R [2012] NSWCCA 123
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- Thammavongsa v R [2015] NSWCCA 107; (2015) 251 A Crim R 342
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64