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Court of Criminal Appeal 13 March 2020

Kao v R

[2020] NSWCCA 38

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE “XIAO ERROR” ESTABLISHED MITIGATORY DURESS LESSER SENTENCE WARRANTED APPLICANT RESENTENCED

Citation: Kao v R [2020] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 13 March 2020
Judge(s): McCallum JA, R A Hulme J, Button J (Button J wrote the principal judgment; the others agreed)

Background

The appellant was convicted of importing a commercial quantity of heroin into Australia between March and July 2015, an offence under s 307.1 of the Criminal Code 1995 (Cth) carrying a maximum penalty of life imprisonment. She had pleaded guilty at the earliest opportunity in the Local Court.

At the original sentencing in July 2017, Judge Craigie SC applied a 25% discount to her sentence, but attributed it to her willingness to facilitate the course of justice and her remorse, rather than to the utilitarian value of her plea of guilty. This was consistent with the understanding of Commonwealth sentencing that prevailed at that time. The head sentence imposed was eight years, with a non-parole period of five years, both backdated to 9 July 2015.

The appellant sought leave to appeal out of time. She argued that subsequent decisions of the Court of Criminal Appeal, specifically Xiao v R (2018) and Diaz v R (2019), revealed that the sentencing approach constituted an error requiring resentence.

  • Whether the sentencing judge committed an error by not providing a separate discount for the utilitarian value of the plea of guilty in a Commonwealth matter (a "Xiao error")
  • Whether leave to appeal out of time should be granted, given that the relevant error only became apparent after the Xiao and Diaz decisions
  • Whether, on resentencing, a lesser sentence was warranted in law
  • What weight to assign to the mitigating factor of non-exculpatory duress, alongside the objective seriousness of the offending

Decision

The Court of Criminal Appeal accepted, without controversy between the parties, that the sentencing judge had committed a "Xiao error". The 25% discount applied at first instance was granted for the appellant's willingness to facilitate justice and her remorse, not for the utilitarian value of her guilty plea as required for Commonwealth offences. Although the outcome might superficially resemble "the right discount for the wrong reason", the Court confirmed that Diaz v R establishes this as an error that does require consideration of resentence, not one that can simply be set aside as inconsequential.

Leave to appeal out of time was granted because the delay was attributable to the incremental development of the criminal law through Xiao and Diaz, rather than to any fault of the appellant or her legal advisors.

On resentencing, the Court exercised the sentencing discretion afresh. Button J commenced with a head sentence of ten years, reflecting the significant objective seriousness of the offence, the appellant's central and multi-faceted role in the criminal enterprise, and the sophistication of the operation. From that starting point, a 25% discount was applied for the utilitarian value of the plea, producing a head sentence of seven years and six months.

In reaching the final sentence, the Court balanced powerful subjective factors in the appellant's favour, including non-exculpatory duress (threats against her and her family by a criminal lender), the absence of any prior criminal record, genuine remorse, excellent rehabilitation prospects, her isolation in custody due to language barriers, and adverse events experienced during her time in custody. The non-parole period was set at four years and eight months, maintaining the 62.5% ratio that had been applied at first instance and was accepted by both parties on appeal.

Orders Made

  • Extension of time to apply for leave to appeal granted
  • Leave to appeal granted and appeal allowed
  • The sentence imposed by Judge Craigie SC on 21 July 2017 is quashed
  • The appellant is resentenced to imprisonment for seven and a half years, dating from 9 July 2015 and expiring on 8 January 2023, with a non-parole period of four years and eight months, which expired on 8 March 2020

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's failure to apply a discount specifically for the utilitarian value of a guilty plea in a Commonwealth matter constitutes a "Xiao error", even where a discount of equivalent size was applied on other grounds such as remorse or willingness to facilitate justice.
  • Under Diaz v R, a "Xiao error" of this character is not a harmless technical mislabelling: it is an error that engages the resentencing jurisdiction under s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • Where a delay in seeking leave to appeal results from the incremental development of the law rather than from any conduct of the appellant or their advisors, the Court may grant an extension of time.
  • Non-exculpatory duress, meaning duress that does not provide a complete legal defence but that substantially explains the offending, can carry significant mitigatory weight at sentencing, to be assessed alongside objective seriousness and the nature of the offender's role.
  • Resentencing by an appellate court requires the court to proceed "unanchored" from the starting point adopted below, with the sentencing discretion exercised entirely afresh.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 307.1
- Crimes Act 1914 (Cth), s 19AL
- 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
- Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215