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Court of Criminal Appeal 12 August 2020

Taumoepeau v R, Siaki v R

[2020] NSWCCA 200

Drugs
CRIMINAL LAW EARLY PLEAS OF GUILTY ERROR FOUND, APPLICANTS RESENTENCED

Citation: Taumoepeau v R; Siaki v R [2020] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 12 August 2020
Judges: Leeming JA, Lonergan J, Hidden AJ

Background

Two applicants, described here as the first applicant and the second applicant, were co-directors and operators of a small food import business in Smithfield, NSW. In September 2015, a hydraulic press imported from Panama was delivered to their warehouse. Unknown to the applicants at the time of delivery, the press concealed approximately 47.6 kilograms of pure cocaine, with an estimated wholesale value of nearly $13 million.

The applicants' case at sentencing was that, after agreeing innocently to store the press, they were later approached by unknown persons and subjected to threats against themselves and their families. They were given an ultimatum: extract the packages inside the press and be paid, or refuse and be blamed if anything went wrong. Accepting the threats as credible given the apparent sophistication of the criminal enterprise, they carried out the extraction. Both were arrested on 23 December 2015.

Each applicant pleaded guilty to attempting to possess a commercial quantity of an unlawfully imported border controlled drug (cocaine) under the Criminal Code 1995 (Cth). In June 2017, the District Court sentenced each to 12 years and 6 months imprisonment with a non-parole period of 7 years and 6 months. Both sought leave to appeal, relying on the Court of Criminal Appeal's later decision in Xiao v R, handed down in February 2018, after their sentences had been imposed.

  • Whether the applications for leave to appeal, filed well out of time, should be granted given the intervening decision in Xiao v R
  • Whether the sentencing judge fell into error by failing to apply the correct approach to the utilitarian value of early guilty pleas, as required by Xiao v R
  • What sentence was appropriate upon resentencing, having regard to all objective and subjective factors including the degree of duress involved

Decision

The Court granted the necessary extensions of time. The delay was satisfactorily explained through affidavits from the applicants and their solicitors, the Crown did not oppose the extension, and the basis for appeal arose from a decision handed down after the original sentences were imposed.

The central finding on the merits was that the sentencing judge had not given proper weight to the utilitarian value of the applicants' early pleas of guilty. While the judge had referred to the timing of the pleas, she treated that timing as a subjective factor, noting the pleas were entered in the face of a strong Crown case. Under the approach confirmed in Xiao v R, the utilitarian value of a guilty plea is an objective consideration that must be assessed separately and given appropriate weight in its own right. Conflating it with subjective factors constitutes error.

The Court identified this as a clear sentencing error and proceeded to resentence both applicants. It was common ground that a 25% discount for the utilitarian value of the pleas was appropriate. Hidden AJ fixed a starting point of 14 years imprisonment. Applying the 25% reduction produced a head sentence of 10 years and 6 months. The same sentence was considered appropriate for each applicant, reflecting their comparable roles and circumstances.

Orders Made

For each applicant:

  • Extension of time to apply for leave to appeal granted
  • Leave to appeal granted and appeal allowed
  • District Court sentence quashed
  • Applicant resentenced to imprisonment for 10 years and 6 months, commencing 23 December 2015 and expiring 22 June 2026
  • Non-parole period of 6 years and 6 months, expiring 22 June 2022, with eligibility for parole from 23 June 2022

Key Takeaways

  • The utilitarian value of a guilty plea is an objective sentencing consideration, not merely a subjective one. Treating it only as evidence of remorse or cooperation, without separately accounting for its objective value, constitutes an error of sentencing principle under the approach confirmed in Xiao v R.

  • A sentence imposed before a significant appellate decision may be successfully challenged on the basis of that later decision, provided the delay in filing is adequately explained and the Crown does not oppose an extension of time.

  • Duress, even where it falls short of a complete legal defence, can operate to mitigate moral culpability and inform the assessment of a co-offender's role in a drug importation enterprise. The Court accepted that the sentencing judge's findings on duress were relevant to, but did not wholly define, the applicants' position in the offending hierarchy.

  • In resentencing, the Court of Criminal Appeal declined to use the original head sentence of 12 years and 6 months as the starting point, instead independently fixing a starting point of 14 years before applying the 25% plea discount.

  • Comparative sentencing decisions from before Xiao v R were treated as being of limited assistance, given both the unusual circumstances of the case and the change in approach to plea discounts that Xiao introduced.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 307.5(1), 11.1(1) (attempting to possess a commercial quantity of an unlawfully imported border controlled drug)
- Crimes Act 1914 (Cth), s 16A (matters to be taken into account in sentencing)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Bae v R [2020] NSWCCA 35
- Huang v R [2018] NSWCCA 70, 272 A Crim R 266
- Tyler v R [2007] NSWCCA 247, 173 A Crim R 458