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Court of Criminal Appeal 26 November 2021

Chen v R (Cth)

[2021] NSWCCA 277

Drugs

Citation: Chen v R (Cth) [2021] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 26 November 2021
Judges: Beech-Jones CJ at CL; Davies J; Wilson J

Background

The appellant was convicted of conspiracy to import a commercial quantity of heroin, an offence carrying a maximum sentence of life imprisonment under the Customs Act 1901 (Cth). In 2002, a District Court judge sentenced him to 40 years imprisonment with a non-parole period of 26 years. The following year, the Court of Criminal Appeal upheld his appeal against sentence and re-sentenced him to 31 years imprisonment with a non-parole period of 23 years, commencing 9 April 2000.

In 2018, the Court of Criminal Appeal handed down its decision in Xiao v R, which confirmed that the utilitarian value of a guilty plea is a proper consideration when sentencing federal offenders under s 16A of the Crimes Act 1914 (Cth). On the basis of that decision, the appellant applied to the Supreme Court under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), arguing that the 2003 re-sentencing had failed to account for the utilitarian value of his late guilty plea.

Johnson J referred the matter to the Court of Criminal Appeal for hearing as a sentence appeal. The sole ground of appeal was that the 2003 Court had not had regard to the utilitarian value of the appellant's guilty plea when determining the appropriate discount under s 16A(2)(g) of the Crimes Act 1914 (Cth).

  • Whether the 2003 Court of Criminal Appeal, in re-sentencing the appellant, erred by failing to take into account the utilitarian value of the appellant's late guilty plea
  • Whether a 10% discount awarded "for the plea" in the 2003 decision reflected only subjective factors, or also captured the utilitarian value of the plea to the criminal justice system
  • Whether the appeal lay against the 2003 Court of Criminal Appeal's sentence or the original 2002 District Court sentence (the latter having been quashed)

Decision

Wilson J (with whom Beech-Jones CJ at CL and Davies J agreed) first clarified a preliminary point: the appeal lay against the sentence imposed by the Court of Criminal Appeal in 2003, not against the original District Court sentence, which had been quashed and was no longer extant. The appellant's initial written submissions had incorrectly targeted the first-instance sentence.

On the substantive ground, Wilson J examined whether the 2003 sentencing decision had recognised and rewarded the utilitarian value of the guilty plea, even though the phrase "utilitarian value" did not appear in those reasons. The 2003 decision had been delivered before Xiao, but the principles in Thomson and Houlton (decided in 2000) already encouraged courts to separately quantify a discount for a plea of guilty as a means of recognising its value to the criminal justice system.

Wilson J found that the 10% discount awarded in 2003 specifically "for the plea" aligned precisely with the quantum suggested by Thomson and Houlton as appropriate for a late plea. Sully J had noted in 2003 that, had late disclosure of the Crown case genuinely affected the timing of the plea, that would have operated further in the appellant's favour, indicating that the discount was directed at the savings to the court system flowing from the plea rather than at subjective factors alone. The 2003 Court had also rejected the appellant's argument that he could not have pleaded earlier.

No error was established. The Court dismissed the appeal, finding that the 2003 decision had both recognised and generously rewarded the utilitarian value of the late guilty plea, notwithstanding the absence of that specific terminology in the judgment.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing court's failure to use the phrase "utilitarian value" does not, of itself, establish error, provided the discount awarded for the plea in substance reflects the savings to the criminal justice system consequent upon the plea.
  • Under the Thomson and Houlton guideline, separately quantifying a discount "for the plea" is the encouraged mechanism for capturing the utilitarian value of a guilty plea, and a discount expressed in those terms will ordinarily be taken to have served that function.
  • Where a plea was entered very late, the timing bears directly on the quantum of the utilitarian discount available; the 2003 Court's observation that the 10% discount was generous for a late plea was consistent with Borkowski principles on this point.
  • An appeal brought following a Part 7 referral under the Crimes (Appeal and Review) Act 2001 (NSW) lies against the most recent extant sentence; where an earlier sentence was quashed on a prior appeal, it is that re-sentencing decision that must be examined for error.
  • No error was established on the facts: the 2003 Court of Criminal Appeal had considered and rejected the appellant's claim that earlier disclosure would have allowed an earlier plea, and had preserved a generous discount despite doubts about whether it was fully merited.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16A(2)(g), 16G
- Crimes (Appeal and Review) Act 2001 (NSW), ss 79(1)(b), 86
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Customs Act 1901 (Cth), s 233B

Cases:
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Chen (2003) 138 A Crim R 433; [2003] NSWCCA 326
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- Application by Jack Chik Chen pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1024
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Weber v R [2020] NSWCCA 103
- Winchester v R (1992) 58 A Crim R 345