The sentences imposed upon the Appellant at the Sydney District Court on 4 April 2013 are quashed. In their place, the Appellant is sentenced to the following terms of imprisonment: (i) for Count 3 - an offence of aiding and abetting importation of a marketable quantity of heroin, imprisonment for four years and nine months commencing on 19 April 2010 and expiring on 18 January 2015; (ii) for Count 1 - an offence of aiding and abetting importation of a commercial quantity of cocaine, imprisonment for nine years commencing on 19 April 2012 and expiring on 18 April 2021; (iii) for Count 2 - an offence of aiding and abetting importation of a commercial quantity of methamphetamine, imprisonment for nine years commencing on 19 October 2014 and expiring on 18 October 2023; (iv) for Count 4 - an offence of aiding and abetting importation of a commercial quantity of methamphetamine, imprisonment for nine years commencing on 19 October 2017 and expiring on 18 October 2026; (v) for Count 5 - an offence of aiding and abetting importation of a commercial quantity of cocaine, imprisonment for nine years commencing on 19 October 2019 and expiring on 18 October 2028; (vi) as against a head sentence of imprisonment of 18 years and six months, there is a single non-parole period of 11 years commencing on 19 April 2010 and expiring on 18 April 2021, with a balance of term of seven years and six months commencing on 19 April 2021 and expiring on 18 October 2028. The Appellant will be eligible for release on parole on 19 April 2021.
Catchwords:
APPEAL – referral to Court of Criminal Appeal under s.79(1)(b) Crimes (Appeal and Review) Act 2001 - offences of aiding and abetting importations of commercial quantities of cocaine and methamphetamine and a marketable quantity of heroin – appellant sentenced in 2013 - sentencing Judge excluded utilitarian value of appellant’s pleas of guilty from consideration in calculating discount consistent with the law prior to Xiao v R – Xiao v R error established - consideration of factors relevant to utilitarian value of guilty pleas - guidance provided by the principles in R v Borkowski - appellant with stronger subjective case on resentence in 2020 - finding that appellant now had good prospects of rehabilitation and a low risk of reoffending - lesser sentences warranted – applicant resentenced
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bae v R [2020] NSWCCA 35
Case
[2020] NSWCCA 35
Decision Date
CaseChat Overview and Summary
Bae appealed against his conviction and sentence for involvement in the importation of commercial quantities of cocaine and methamphetamine and a marketable quantity of heroin. The appeal centred on the calculation of the discount applied for his early guilty plea, and the subsequent sentence imposed. Bae argued that the sentencing judge should have considered the utilitarian value of his plea in accordance with the law as it stood after the decision in Xiao v R. The Court of Criminal Appeal was required to determine whether the sentencing judge erred in the calculation of the discount and whether the sentence was appropriate.
The Court of Criminal Appeal noted that prior to Xiao v R, the law did not require consideration of the utilitarian value of a guilty plea. However, following Xiao v R, the law now required such consideration. The court examined the principles outlined in R v Borkowski to determine the extent to which the appellant's guilty plea should have influenced the sentencing discount. The court found that the appellant had a stronger subjective case for a reduced sentence due to his early guilty plea and his prospects for rehabilitation. The court also considered that the appellant posed a low risk of reoffending.
After reassessing the appellant's case in light of the principles in R v Borkowski and the law as it stood post-Xiao v R, the Court of Criminal Appeal found that the appellant should have received a greater discount for his early guilty plea. The court concluded that the appellant's prospects for rehabilitation and low risk of reoffending warranted a lesser sentence. The appellant was resentenced accordingly.