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Court of Criminal Appeal 23 December 2020

Green (a pseudonym) v R

[2020] NSWCCA 358

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL PROCEEDS OF CRIME UTILITARIAN VALUE OF PLEA XIAO ERROR ESTABLISHED SENTENCING

Citation: Green (a pseudonym) v R [2020] NSWCCA 358
Court: NSW Court of Criminal Appeal
Date: 23 December 2020
Judge(s): Meagher JA, Walton J, Beech-Jones J

Background

The appellant (referred to by the pseudonym "Green") pleaded guilty in the Local Court to two Commonwealth offences: engaging in banking transactions involving proceeds of crime exceeding $100,000, and importing a commercial quantity of methylamphetamine (approximately 12 kilograms of pure product). Both pleas were entered before committal. A third related offence was taken into account on a schedule at sentencing.

The sentencing judge in the District Court imposed a total effective sentence of 10 years' imprisonment with a non-parole period of 6 years, commencing December 2015. In reaching that sentence, the judge applied an overall 50% discount to reflect the appellant's extensive cooperation with law enforcement and his guilty pleas, framing the plea component as the appellant's willingness to "facilitate the course of justice."

The appellant sought leave to appeal out of time, arguing that the sentencing judge had failed to separately recognise and apply a discount for the utilitarian value of his pleas, as required under the principles developed in subsequent Court of Criminal Appeal decisions.

  • Whether the sentencing judge erred by failing to give any discount for the utilitarian value of the guilty pleas when sentencing for Commonwealth offences.
  • Whether, on re-sentencing, a lesser sentence than that originally imposed was warranted in all the circumstances.

Decision

The Court of Criminal Appeal accepted that the sentencing judge had committed what is sometimes called a "Xiao error." The judge's reference to the plea as evidence of willingness to facilitate justice is legally distinct from recognising the utilitarian value of a plea (that is, the practical benefit to the justice system of saving court time and resources). Both the Crown and the appellant conceded this point, and the concession was accepted as properly made.

Because an error was established, the Court was required to exercise the sentencing discretion afresh, taking into account all relevant sentencing purposes and factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16A of the Crimes Act 1914 (Cth). The unchallenged factual findings of the sentencing judge were carried forward, and additional evidence of the appellant's conduct in custody was also considered.

On re-sentencing, the Court determined that a 25% discount for the utilitarian value of the pre-committal pleas was appropriate in the ordinary course. The Court also recognised the appellant's substantial cooperation with authorities, his mental health history, and positive custodial conduct, including consistent work, no disciplinary breaches, and completion of further courses. However, the objective seriousness of the drug importation offence, the financial motivation behind the offending, and the significant need for general deterrence in relation to large-scale drug importation were found to weigh heavily in the sentencing calculus.

Ultimately, the Court was satisfied that no lesser sentence than that originally imposed was warranted. The appeal was therefore dismissed, despite the Xiao error being established.

Orders Made

  • Time for the appellant to seek leave to appeal extended under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW).
  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's reference to a guilty plea as reflecting "willingness to facilitate the course of justice" does not satisfy the requirement to discount for the utilitarian value of that plea in a Commonwealth sentencing. The two concepts are legally distinct.
  • Under principles confirmed in cases including Xiao v R and Huang v R, failing to apply any discount for the utilitarian value of a guilty plea when sentencing for a Commonwealth offence constitutes legal error requiring resentencing.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that establishing a Xiao error does not automatically produce a lesser sentence. On re-sentencing, the court exercises a full independent discretion and may arrive at the same result by a different path.
  • Pre-committal guilty pleas to Commonwealth offences ordinarily attract a 25% discount for utilitarian value, consistent with Kaurasi v R [2020] NSWCCA 253.
  • General deterrence carries particular prominence in sentencing for large-scale commercial drug importation, and positive subjective features, including cooperation, custodial conduct, and mental health considerations, may not be sufficient to reduce a sentence where objective seriousness is high.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including s 16A and s 16BA
- Criminal Code 1995 (Cth), ss 307.1(1), 311.4, 400.9
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3), 10(1)(b)

Key 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
- Kaurasi v R [2020] NSWCCA 253
- Bae v R [2020] NSWCCA 35
- 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] NSWCCA 194
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- Hijazi v R [2020] NSWCCA 97
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Mulato v R [2006] NSWCCA 282
- Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255