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Court of Criminal Appeal 8 October 2021

Lam v R (Cth); Lay v R (Cth); To v R (Cth)

[2021] NSWCCA 242

Drugs
CRIME APPEAL AGAINST SENTENCE C OMMONWEALTH OFFENCES SENTENCES IMPOSED IN 2014 AND 2016 “XIAO” ERROR ERROR CONCEDED

Citation: Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 8 October 2021
Judge(s): Payne JA, Wilson J, Fagan J

Background

Three co-offenders, referred to here by their roles as the first, second, and third applicants (Lam, Lay, and To), participated in a sophisticated 2012 enterprise to import very large quantities of methamphetamine and heroin into Australia from Thailand. The scheme involved dry-run consignments to establish a legitimate import history, a network of operatives in Hong Kong and Sydney, and a final shipment of nearly 300 kilograms of pure methamphetamine and approximately 174 kilograms of pure heroin concealed in pottery vases. Border officials seized and replaced the drugs, delivering the shipment under a controlled operation.

Each applicant was sentenced in the District Court of NSW: the first and second applicants in early 2014, and the third in December 2016. The first applicant received 18 years imprisonment with a 12-year non-parole period. All three sentences were imposed before the Court of Criminal Appeal handed down its landmark decision in Xiao v R (2018) 96 NSWLR 1.

Each applicant sought leave to appeal against sentence, contending that the original sentencing judges had made what is now called "Xiao error." The second applicant also raised a parity ground, arguing his sentence was disproportionate compared to those of his co-offenders.

  • Whether each sentencing judge committed "Xiao error" by failing to take into account the objective utilitarian value of the applicant's plea of guilty when sentencing under s 16A of the Crimes Act 1914 (Cth)
  • Whether, upon finding such error and exercising the sentencing discretion afresh, a lesser sentence than that imposed at first instance was warranted
  • Whether the parity principle, raised by the second applicant, required any adjustment to the sentences on resentencing

Decision

In Xiao v R, the Court of Criminal Appeal (constituted by five judges) held that a sentencing judge is entitled to take the utilitarian value of a guilty plea into account when sentencing for Commonwealth offences under s 16A of the Crimes Act 1914 (Cth). The Crown conceded that this principle had not been applied at the original sentencing hearings for all three applicants, acknowledging Xiao error in each case. That concession meant the Court was required to exercise the sentencing discretion afresh, in accordance with the approach mandated by the High Court in Kentwell v The Queen.

Wilson J, with whom Payne JA and Fagan J agreed, undertook that fresh sentencing exercise for each applicant. On resentencing, the Court determined that a discount of no more than 25% was warranted for the first and second applicants, and no more than 15% for the third, reflecting the differing circumstances in which their pleas were entered. Payne JA noted that, consistent with the approach taken in Xiao itself, it was immaterial whether those discounts were characterised as being for facilitating the course of justice or for utilitarian value.

Notwithstanding the error, the Court concluded that no sentence less severe than those originally imposed was warranted in law for any of the three applicants. The offending involved extraordinarily large quantities of border controlled drugs, the maximum penalty prescribed by the Commonwealth Parliament was life imprisonment, and the objective gravity of the conduct was very high. The parity ground advanced by the second applicant did not alter the outcome.

Because the fresh sentences would be no less severe than those imposed at first instance, the Court applied s 6(3) of the Criminal Appeal Act 1912 (NSW) and declined to resentence the applicants. Under the principle confirmed in Kentwell, resentencing is not warranted where the exercise of the discretion afresh produces no lesser result.

Orders Made

For each of the three applicants, the Court made the following orders:

  • Time in which to apply for leave to appeal extended (to 10 December 2020 for the first applicant; 4 May 2021 for the second; 7 April 2020 for the third)
  • Leave to appeal granted (for the second applicant, leave was granted on ground 1 only)
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that "Xiao error" (failure to take into account the utilitarian value of a guilty plea when sentencing for Commonwealth offences under s 16A of the Crimes Act 1914 (Cth)) is a recognised sentencing error that will vitiate a sentence and require the appellate court to exercise the discretion afresh.
  • A finding of Xiao error does not automatically produce a lesser sentence on appeal. Where the correct approach, applied afresh, yields no sentence less severe than that originally imposed, the appellate court will decline to resentence the applicant pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) and Kentwell v The Queen.
  • Under Xiao, it is immaterial whether the plea discount is described as being for facilitating the course of justice or for its utilitarian value; what matters is that the objective utilitarian benefit of the plea is factored into the sentencing exercise.
  • The parity principle was considered in the context of the resentencing exercise but did not alter the outcome, given the very high objective gravity of the offending across all three applicants.
  • For offences carrying a maximum of life imprisonment and involving commercial quantities of border controlled drugs, the objective gravity of the conduct may be so severe that even the correct application of sentencing principles produces sentences of very substantial length.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including s 16A and Part IB
- Criminal Code Act 1995 (Cth), ss 307.5(1) and 11.1
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Lee v R; Tang v R [2015] NSWCCA 157
- TTP v R [2018] NSWCCA 225
- Diaz v R [2019] NSWCCA 216