AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 7 October 2020

Kaurasi v R (Cth)

[2020] NSWCCA 253

Drugs
APPEAL “XIAO ERROR”

Citation: Kaurasi v R (Cth) [2020] NSWCCA 253
Court: Court of Criminal Appeal, New South Wales
Date: 7 October 2020
Judge(s): Fullerton J at [1]; Wilson J at [8]; Ierace J at [63]

Background

The applicant, a Fijian national employed by a Fijian water company, was convicted of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Criminal Code (Cth). He had arranged for a pallet of Fiji Water to be shipped from Fiji to Sydney, within which approximately 43 kilograms of pure cocaine (purity 84–86%) had been concealed. The commercial quantity threshold for this offence is two kilograms, making the quantity involved far in excess of that threshold.

The applicant was arrested in August 2018 and pleaded guilty at the Local Court on 8 May 2019, a plea accepted by all parties as having been entered at the earliest reasonable opportunity. On 16 August 2019, the District Court sentenced him and applied a discount of 10% for the utilitarian value of his guilty plea, combined with a further 5% for assistance to authorities.

The applicant sought leave to appeal against that sentence, arguing that the sentencing judge had erred in assessing the utilitarian value of the guilty plea. This type of error has become known in New South Wales criminal law as a "Xiao error," referring to the Court of Criminal Appeal's decision in Xiao v R [2018] NSWCCA 4, which addressed how the discount for a guilty plea should be assessed for Commonwealth offences.

  • Whether the sentencing judge erred in assessing the utilitarian value of the applicant's early guilty plea for a Commonwealth offence (the so-called "Xiao error").
  • What discount was appropriate on resentence, having regard to the utilitarian value of the early plea and the applicant's assistance to authorities.
  • Whether remorse and contrition, as subjective factors, could properly operate to arithmetically reduce the utilitarian discount for the plea.
  • How the New South Wales committal scheme, introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), should inform the assessment of the utilitarian value of a plea by a Commonwealth offender committed under that scheme.

Decision

The Court unanimously found that the sentencing judge had made a Xiao error in assessing the utilitarian value of the guilty plea. The sentencing judge had applied only a 10% discount for the utilitarian value of the plea, well below the generally accepted benchmark of 25% for an early Commonwealth guilty plea. The Court granted leave to appeal and proceeded to resentence the applicant.

On resentence, Fullerton J and Wilson J reached different conclusions on the appropriate discount. Fullerton J allowed 25% for the early plea combined with 5% for assistance, producing a total discount of 30%. Her Honour accepted that the applicant's affidavit demonstrated genuine remorse and contrition, and found sound prospects of rehabilitation.

Fullerton J emphasised an important distinction: remorse and contrition are subjective factors under s 16A(2)(g) of the Crimes Act 1914 (Cth) and do not attract an arithmetical discount. They are to be weighed in arriving at the overall sentence, but they should not be used to arithmetically increase or reduce the separate utilitarian discount for the plea. A demonstrated lack of remorse may be a weighty factor, but it operates independently of the utilitarian value calculation.

Wilson J provided detailed reasoning on the operation of the New South Wales committal scheme for Commonwealth offenders. Her Honour observed that while the scheme excludes Commonwealth offenders from the guaranteed 25% statutory discount available to state offenders, a sentencing court should take into account the sequenced and participatory nature of the committal process when assessing the utilitarian benefit of a plea entered at or near the end of that process. This would likely produce a result comparable to the statutory discount for state offences.

Orders Made

  • The sentence imposed in the District Court on 16 August 2019 was quashed.
  • In lieu thereof, the applicant was sentenced to imprisonment for 11 years and 3 months, commencing 17 August 2018 and expiring 16 November 2029.
  • A non-parole period of 8 years and 5 months was set, expiring 16 January 2027.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a 10% discount for an early guilty plea in a Commonwealth offence, where the plea was entered at the earliest reasonable opportunity, constituted a Xiao error and warranted resentence.
  • A discount of 25% for the utilitarian value of an early Commonwealth guilty plea is generally accepted as the appropriate benchmark, though it is not a fixed or normative discount in the way the statutory scheme applies to state offences.
  • Remorse and contrition are subjective sentencing factors under s 16A(2)(g) of the Crimes Act 1914 (Cth) and must be assessed independently of the arithmetical utilitarian discount for the plea. They cannot be used to increase or decrease that discount arithmetically.
  • Where a Commonwealth offender pleads guilty during or at the conclusion of the New South Wales committal scheme, Wilson J considered that the structured and participatory nature of that process is a relevant factor in assessing the utilitarian benefit of the plea.
  • In applying the resentencing discretion following a successful appeal, the Court of Criminal Appeal exercised the full sentencing discretion afresh in accordance with the approach in Kentwell v The Queen (2014) 252 CLR 601.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 307.1(1)
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25A, 25F(4)
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Xiao v R (2018) 96 NSWLR 2; [2018] NSWCCA 4
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191
- Huang aka Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70
- Baden v R [2020] NSWCCA 2
- Bae v R [2020] NSWCCA 35
- Kannis v R [2020] NSWCCA 79
- R v Tait and Bartley (1979) 24 ALR 473