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Court of Criminal Appeal 22 February 2023

Choy v R

[2023] NSWCCA 23

Drugs
CRIMINAL LAW APPEAL SENTENCE APPEAL LATE GUILTY PLEA ERROR CONCEDED CRIMINAL LAW APPEAL

Citation: Choy v R [2023] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 22 February 2023
Judges: Beech-Jones CJ at CL, Price J, Lonergan J

Background

The applicant pleaded guilty in the District Court to importing a commercial quantity of a border-controlled drug, specifically 73.80 kilograms of pure methamphetamine, contrary to s 307.11 of the Criminal Code (Cth). The court also took into account, at sentencing, a further Commonwealth offence of aiding and abetting the manufacture of a commercial quantity of methamphetamine. Both offences carry a maximum penalty of life imprisonment.

The applicant was sentenced in August 2016, receiving 21 years imprisonment with a non-parole period of 15 years, commencing 9 July 2013. He was one of four co-offenders involved in the same criminal enterprise. A fourth co-offender, sentenced nearly two years later in June 2018, received 23 years and 9 months imprisonment with a non-parole period of 15 years and 9 months, reflecting a notably different ratio of non-parole period to head sentence.

The applicant sought leave to appeal out of time on two grounds: first, that the sentencing judge failed to take into account the utilitarian value of his guilty plea (described as "Xiao error", after the 2018 Court of Criminal Appeal decision that clarified this requirement); and second, that the disparity between his non-parole period ratio and that of the later-sentenced co-offender gave rise to a justifiable sense of grievance.

  • Whether the sentencing judge erred by failing to consider the utilitarian value of the guilty plea when discounting the sentence for a Commonwealth offence, contrary to the principles later established in Xiao v R (2018)
  • Whether an unjustified disparity existed between the applicant's non-parole period, expressed as a proportion of his head sentence, and that imposed on a co-offender sentenced for the same offences
  • Whether, despite these conceded errors, a lesser sentence was warranted in law such that the out-of-time extension and leave to appeal should be granted

Decision

The Crown conceded both grounds of error. On the first ground, the sentencing judge sentenced the applicant in August 2016 before the Court of Criminal Appeal's decision in Xiao v R clarified that, when sentencing for Commonwealth offences, a sentencing court must separately consider the utilitarian value of a guilty plea. Failure to do so constitutes a sentencing error, and this concession was accepted by the Court.

On parity, the applicant's non-parole period represented 71.3% of his head sentence, while the later-sentenced co-offender's non-parole period represented only 66.3% of his head sentence. The co-offender had been found to have a higher role in the criminal group. The Crown conceded that this unexplained difference in ratios gave rise to a justifiable sense of grievance. Beech-Jones CJ at CL noted that, given the Xiao error was conceded and determinative, it was unnecessary to resolve whether the parity disparity alone would have been sufficient to establish error.

Lonergan J, with whom Price J and (on the outcome) Beech-Jones CJ at CL agreed, was satisfied that the combination of errors warranted a lesser sentence. Her Honour found no basis to reduce the 21-year head sentence, accepting that the sentencing judge's unchallenged findings about the seriousness of the offending and the applicant's central role remained sound. However, a reduction in the non-parole period from 15 years to 14 years was considered appropriate to reflect the criminality of the offending and the minimum term the applicant should serve.

Orders Made

  • Time for appeal extended to 8 April 2022
  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court on 19 August 2016 quashed
  • In substitution: 21 years imprisonment commencing 9 July 2013, expiring 8 July 2034, with a non-parole period of 14 years expiring 8 July 2027

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing for Commonwealth offences requires separate consideration of the utilitarian value of a guilty plea, and that failure to do so constitutes error, even where the sentence predated the Xiao v R clarification.
  • A conceded failure to apply the Xiao principle was sufficient on its own to support granting an out-of-time extension and leave to appeal, provided the Court was satisfied that a lesser sentence was warranted in law.
  • Unjustified disparity in the ratio of non-parole period to head sentence, when compared with a co-offender sentenced for the same offences, can give rise to a justifiable sense of grievance, even where the co-offender was found to have played a more serious role overall.
  • Beech-Jones CJ at CL declined to resolve whether the parity ground alone would have established error, as the Xiao concession made further analysis unnecessary.
  • Reducing only the non-parole period, while leaving the head sentence intact, was available as a remedy where the sentencing judge's findings on the seriousness of the offending and the applicant's role remained unchallenged on appeal.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.2(1), 305.3(1), 307.11
- Crimes Act 1914 (Cth), s 16BA
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Huang v R [2018] NSWCCA 57
- Diaz v R [2019] NSWCCA 216
- House v R (1936) 55 CLR 499; [1936] HCA 40
- 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) 79 NSWLR 1; [2010] NSWCCA 194
- R v Thomson and Houlton (2000) 29 NSWLR 383; [2000] NSWCCA 309
- Aslan v R [2014] NSWCCA 114
- Singh v R [2018] NSWCCA 60
- Khalid v R [2020] NSWCCA 73
- Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242
- Heng v R [2019] NSWCCA 317