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Court of Criminal Appeal 4 September 2020

Hong v R

[2020] NSWCCA 225

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE 25 KILOGRAMS OF PURE HEROIN “XIAO ERROR” ESTABLISHED LESSER SENTENCE WARRANTED APPLICANT RE

Citation: Hong v R [2020] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 4 September 2020
Judge(s): McCallum JA at [1]; Button J at [2]; Ierace J at [59]

Background

The applicant pleaded guilty in the District Court in 2012 to attempting to possess a commercial quantity of unlawfully imported heroin, a Commonwealth offence carrying a maximum sentence of life imprisonment. The offending involved nearly 25 kilograms of pure heroin concealed in a furniture shipment that arrived at Port Botany. The sentencing judge described the applicant as a senior participant, entrusted with managing the consignment across multiple stages of importation and intended distribution.

At sentence, the applicant received a 25% discount reflecting his early plea of guilty as a sign of remorse and for facilitating the administration of justice. The sentencing judge imposed a head sentence of 15 years with a non-parole period of 10 years. No separate utilitarian discount was applied to recognise the practical benefit of the plea to the criminal justice system, which at the time was consistent with the prevailing understanding of the law in New South Wales.

Years after sentencing, Legal Aid NSW identified the applicant as a person who may not have received a utilitarian discount to which he was now entitled following a change in the law. The application for leave to appeal out of time was heard on 3 August 2020, shortly before the applicant's non-parole period was due to expire in May 2021.

  • Whether the sentencing judge erred by failing to apply a utilitarian discount for the plea of guilty to a Commonwealth offence, in light of the subsequent decision in Xiao v R (2018).
  • Whether, in re-sentencing the applicant, a lesser sentence was warranted in law, taking into account both the original sentencing factors and the applicant's progress in custody over the eight years since sentence was imposed.

Decision

Both parties accepted that a "Xiao error" was established. The sentencing judge, acting in accordance with the understanding of the law at the time, had not applied a utilitarian discount for the plea of guilty. Following the Court of Criminal Appeal's five-judge bench decision in Xiao v R, such a discount is available for Commonwealth offences. The Court confirmed that the fact the overall discount may have been quantitatively appropriate in the circumstances did not cure the legal error, citing Diaz v R.

The principal dispute was whether, re-exercising the sentencing discretion afresh, the Court would regard a lesser sentence as warranted. Button J emphasised the gravity of the offending: nearly 25 kilograms of pure heroin, a senior role in the operation, and motivation that was purely financial. These factors supported a substantial sentence.

Weighing against that gravity, Button J pointed to the applicant's clean criminal history, genuine remorse, his early plea of guilty, and his compelling progress in custody over approximately eight years. Since sentence, the applicant had significantly improved his English, completed numerous vocational and educational courses, and worked in administrative roles at two correctional centres. He had also abstained from gambling despite its presence in custody, and had endured the loss of his mother while imprisoned and largely without family support.

Sentencing afresh, Button J adopted a starting-point head sentence of 19 years, applied a 25% utilitarian discount for the plea of guilty, and arrived at a head sentence of 14 years with a non-parole period of 9 years. Because that non-parole period had already expired by the date of the hearing, Button J recommended the applicant be considered for release to parole as soon as reasonably practicable. McCallum JA and Ierace J agreed.

Orders Made

  • Leave to appeal out of time granted.
  • Appeal allowed.
  • The sentence imposed by Judge Cogswell SC on 27 June 2012 is quashed.
  • The applicant is sentenced to imprisonment for 14 years, dating from 12 May 2011 and expiring on 11 May 2025, with a non-parole period of 9 years that expired on 11 May 2020.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the failure to apply a utilitarian discount for a plea of guilty to a Commonwealth offence constitutes a sentencing error following Xiao v R, even where the overall discount granted may have been numerically adequate.
  • A "Xiao error" does not automatically result in a reduced sentence; the court must re-exercise the sentencing discretion entirely afresh, weighing all objective and subjective factors including any developments since the original sentence was imposed.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), evidence of post-sentence rehabilitation and conduct in custody is admissible and relevant on a re-sentencing exercise, and the Court gave it significant weight here.
  • Exceptional progress in custody over many years, including vocational achievement, abstinence from prior offending behaviours, and resilience in difficult personal circumstances, can cumulatively support a reduced non-parole period even for very serious offending.
  • Legal Aid NSW's systematic work in identifying individuals who may have been affected by the Xiao decision was acknowledged as the reason for the delay in bringing the application, which the Court accepted as justification for granting leave out of time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Diaz v R [2019] NSWCCA 216