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Court of Criminal Appeal 3 April 2020

Chuang, Chih Wen v R; Chen, Chun Hung v R

[2020] NSWCCA 60

Drugs
CRIME APPEAL AGAINST SENTENCE COMMONWEALTH OFFENCE CONSPIRACY TO IMPORT DRUGS SENTENCING REQUIRED PARITY PRINCIPLE AND ITS APPLICATION

Citation: Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 3 April 2020
Judges: Basten JA; Rothman J; Cavanagh J

Background

The two applicants were convicted of conspiracy to import a commercial quantity of drugs, a Commonwealth offence under the Criminal Code Act 1995 (Cth). They were sentenced in the District Court on 31 March 2017 by Tupman DCJ to ten years' imprisonment each, with a non-parole period of six years, back-dated to their arrest on 5 July 2014. Both applicants had entered early guilty pleas.

At sentencing, the primary judge acknowledged the guilty pleas as showing a willingness to facilitate the interests of justice, but treated the strong Crown case as significantly reducing the weight given to those pleas. Critically, the judge did not apply any discount for the utilitarian value of the pleas, meaning the objective benefit to the justice system of saving the time and cost of a contested trial was not separately recognised.

The applicants sought leave to appeal nearly three years after sentencing, in January 2020. The delay arose in large part because the relevant legal question had only been definitively resolved in February 2018 by a five-judge bench of the Court of Criminal Appeal in Xiao v R [2018] NSWCCA 4, some ten months after the original sentences were imposed.

  • Whether an extension of time should be granted for a late appeal against sentence, given the post-sentencing clarification of the law in Xiao v R
  • Whether the sentencing judge erred by failing to apply a discount for the utilitarian value of the guilty pleas in proceedings governed by s 16A(2)(g) of the Crimes Act 1914 (Cth)
  • Whether a strong prosecution case reduces the utilitarian value of a guilty plea, as distinct from its subjective mitigating weight
  • Whether the parity principle required the sentences for the two applicants to be aligned with each other and with a co-offender's sentence

Decision

The Court granted the extension of time and leave to appeal, and upheld the appeal. Following the approach in Kentwell v The Queen (2014) 252 CLR 601, the Court confirmed that an extension of time is ordinarily appropriate where a material sentencing error is identified in relation to a sentence still being served. The Court noted the Commonwealth Director did not oppose the extension, and that neither applicant had waived or abandoned any acknowledged right to a utilitarian discount during the original sentencing proceedings.

On the substantive ground of appeal, the Court held that the sentencing judge's failure to give any discount for the utilitarian value of the guilty pleas constituted error. This was so regardless of the strength of the Crown case. The Court drew a clear distinction between two separate considerations: the subjective willingness of an offender to facilitate the administration of justice (which a strong prosecution case may reduce), and the objective utilitarian value of the plea to the justice system (which a strong prosecution case does not diminish).

Applying the principles settled in Xiao and further refined in Jinde Huang aka Wei Liu v R [2018] NSWCCA 70, the Court treated the failure to account for utilitarian value not merely as a discretionary oversight but as a legal error. Resentencing was therefore required.

On resentencing, the Court identified a starting point of twelve years' imprisonment for each applicant, having regard to comparable sentences including that of a co-offender. It then applied a 25% discount for the utilitarian value of the early guilty pleas, arriving at a sentence of nine years with a non-parole period of five years and six months, commencing 5 July 2014.

Orders Made

  • Extension of time granted to both applicants to file their applications for leave to appeal
  • Leave to appeal granted
  • Appeal allowed
  • The District Court sentence of 31 March 2017 imposed on Chun Hung Chen quashed; Chen resentenced to nine years' imprisonment commencing 5 July 2014 and expiring 4 July 2023, with a non-parole period of five years and six months concluding 4 January 2020
  • The District Court sentence of 31 March 2017 imposed on Chih Wen Chuang quashed; Chuang resentenced to nine years' imprisonment commencing 5 July 2014 and expiring 4 July 2023, with a non-parole period of five years and six months concluding 4 January 2020
  • Both applicants became first eligible for parole on 4 January 2020

Key Takeaways

  • Under s 16A(2)(g) of the Crimes Act 1914 (Cth), a sentencing court is required to take into account the utilitarian value of a guilty plea in Commonwealth sentencing proceedings; following Xiao v R and Jinde Huang aka Wei Liu v R, failure to do so constitutes a legal error that warrants resentencing.
  • A strong prosecution case may diminish the subjective weight given to an offender's willingness to facilitate justice, but it does not reduce the objective utilitarian value of a guilty plea to the administration of justice. These are distinct sentencing considerations that must be assessed separately.
  • The Court of Criminal Appeal confirmed that the principle in Kentwell v The Queen applies where a post-sentencing change in the law reveals a material sentencing error: an extension of time will ordinarily be granted without the applicant needing to demonstrate that the sentence would probably be varied or that substantial injustice arose.
  • In describing the discount for subjective willingness to facilitate justice, the Court cautioned that using the language of an "arithmetical discount" is apt to cause confusion, since this factor is closely related to contrition and remorse and does not operate in the same way as the utilitarian discount.
  • Where a utilitarian discount is applied, it is desirable that the sentencing court specify the amount of the discount, though failure to do so does not of itself constitute error (per Jinde Huang aka Wei Liu v R).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Criminal Code Act 1995 (Cth), ss 11.5 and 307.5
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A and 23

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Jinde Huang aka Wei Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208
- Director of Public Prosecutions (Cth) v Thomas (2016) 53 VR 546; [2016] VSCA 237
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60