Citation: Kwan v R; Kwok v R [2020] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 2 December 2020
Judge(s): Meagher JA; Walton J; Beech-Jones J
Background
Two Hong Kong nationals pleaded guilty in the Local Court to attempting to possess a commercial quantity of a border controlled substance, specifically 33.1565 kilograms of methamphetamine, contrary to the Criminal Code 1995 (Cth). Both were committed for sentence and appeared together before the District Court. In May 2014, the sentencing judge imposed identical sentences of 20 years' imprisonment with a non-parole period of 13 years on each offender.
The offending arose from a covert importation scheme. A shipment of hair salon furniture concealed methamphetamine in bottles labelled as shampoo and other products. Police replaced the drugs with an inert substance before the shipment was collected. Both offenders were arrested after attending the warehouse where the consignment was held.
More than six years after sentencing, each offender applied for an extension of time to seek leave to appeal against sentence. Both applications raised a single ground: that the sentencing judge had failed to apply a discount for the utilitarian value of their guilty pleas, as required when sentencing for Commonwealth offences.
Legal Issues
- Whether the sentencing judge erred by failing to apply a discount for the utilitarian value of the guilty pleas when sentencing for a Commonwealth offence
- Whether an extension of time to seek leave to appeal should be granted in light of that error
- What sentence was appropriate upon a fresh exercise of the sentencing discretion, including the correct discount for pleas entered at committal
Decision
The Court found that the sentencing judge had committed what is known as "Xiao error." Following the decisions in Xiao v R [2018] NSWCCA 4 and the two Huang decisions (both 2018), it is established that a sentencing court must consider the utilitarian value of a guilty plea when imposing a sentence for a Commonwealth offence. The utilitarian value is distinct from an acknowledgment of the strength of the Crown case or a willingness to facilitate justice, and the sentencing judge's comments addressed only those latter matters, not the former. The Crown properly conceded the error.
Because the error was identified, the Court was required to resentence both offenders afresh, exercising an independent discretion. All other findings of the sentencing judge remained unchallenged, including findings about the objective seriousness of the offending. The Crown ultimately accepted, after reviewing comparable cases, that a lesser sentence than originally imposed was warranted.
The pleas were entered at committal, the earliest available opportunity, and the Crown accepted that this timing warranted a discount of 25 per cent. The Court applied that discount and, after considering general deterrence (which it described as prominent in drug importation matters), the objective gravity of the offending, and the offenders' subjective circumstances (which were not characterised as strong), it arrived at a reduced sentence. There was no relevant difference in the roles or subjective circumstances of the two offenders, so parity concerns did not arise.
Orders Made
- Time extended for each applicant to seek leave to appeal, pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW)
- Leave to appeal against sentence granted to each applicant
- Original sentences imposed in the District Court on 1 May 2014 quashed
- Each offender resentenced to a total term of 16 years' imprisonment, comprising a non-parole period of 10 years commencing 16 May 2013 and expiring 15 May 2023, with a balance of term of 6 years concluding 15 May 2029
Key Takeaways
- A sentencing court's acknowledgment that an offender's plea reflected the strength of the Crown case, or demonstrated a willingness to facilitate justice, does not satisfy the requirement to consider the utilitarian value of the plea when sentencing for a Commonwealth offence. These are separate considerations.
- Under the principles established in Xiao and the Huang decisions, failure to consider the utilitarian value of a guilty plea when sentencing for a Commonwealth offence constitutes an error warranting appellate intervention.
- The timing of a plea is the primary determinant of its utilitarian value. A plea entered at committal, the earliest reasonable opportunity, attracted a 25 per cent discount in this case, as accepted by the Crown.
- Where Xiao error is established, the Court of Criminal Appeal exercises the sentencing discretion afresh, having regard to the purposes of sentencing and the factors required by the Crimes (Sentencing Procedure) Act 1999 (NSW), while relying on unchallenged findings of fact from the original sentencing.
- General deterrence carries significant weight when sentencing for large-scale drug importation offences, even where resentencing reduces the overall term.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), ss 307.5(1) and 11.1(1)
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c) and 10(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A and 21A
Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57
- Jinde Huang aka Wei Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70
- Bae v R [2020] NSWCCA 35
- Hijazi v R [2020] NSWCCA 97
- Baladjan v R [2018] NSWCCA 304
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255
- Chan, Lo and Nguyen v R [2010] NSWCCA 153
- Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128
- R v Pham; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 46
- Mulato v R [2006] NSWCCA 282
- O'Neile v R [2018] NSWCCA 291