Chuang, Chih Wen v The Queen; Chen, Chun Hung v The Queen

[2020] NSWCCA 60

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60

Hearing dates:

20 March 2020

Date of orders:

03 April 2020

Decision date:

03 April 2020

Before:

Basten JA at [1];
Rothman J at [20];
Cavanagh J at [83]

Decision:

(1)   Extension of time granted to the Applicants so as to allow the filing of the applications for leave to appeal and the appeal;

 

(2)   Leave to appeal granted;

 

(3)   Appeal allowed;

 

(4)   The sentence imposed by the District Court on 31 March 2017 on Chun Hung Chen be quashed and in lieu thereof Chun Hung Chen be sentenced to a term of imprisonment of 9 years commencing 5 July 2014 and expiring 4 July 2023, with a non-parole period of 5 years and 6 months, concluding 4 January 2020;

 

(5)   The sentence imposed by the District Court on 31 March 2017, on Chih Wen Chuang be quashed and in lieu thereof Chih Wen Chuang be sentenced to a term of imprisonment of 9 years, commencing 5 July 2014 and expiring 4 July 2023, with a non-parole period of 5 years and 6 months, concluding 4 January 2020.

 (6)   Each of Mr Chen and Mr Chuang were first eligible for parole on 4 January 2020.

Catchwords:

CRIME – appeal against sentence – Commonwealth offence – conspiracy to import drugs - failure to take into account the utilitarian value of the plea of guilty – re-sentencing required – parity principle and its application – relative role in conspiracy – sentence below quashed and new sentence imposed.

Legislation Cited:

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

Cases Cited:

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
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
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
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

2014/198747:
Chih Wen Chuang (Applicant)
Regina (Respondent)

  2014/198764:
Chun Hung Chen (Applicant)
Regina (Respondent)

Representation:

Counsel:
N Steel (Applicants)
D Jordan (Respondents)

  Solicitors:
Legal Aid NSW (Applicants)
Director of Public Prosecutions (Cth) (Respondents)

File Number(s):

2014/198747; 2014/198764

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

31 March 2017

Before:

Tupman DCJ

File Number(s):

2014/198747; 2014/198764

Judgment

1. BASTEN JA: The applicants sought leave to appeal against sentences imposed on them by Tupman DCJ in the District Court on 31 March 2017. I agree with Rothman J that the applicants should have an extension of time within which to seek leave to appeal, and that leave should be granted, the appeal upheld and the applicants resentenced. The result of that resentencing is that the applicants are now eligible for parole.

2. I agree with the reasons given by Rothman J for that outcome. There are two issues as to which I make the following observations, by way of further explanation rather than qualification of the reasons of Rothman J.

Extension of time

3. It is usually troubling that the outcome of an appeal against sentence is to reduce the offender’s non-parole period to the extent that it has been completed before judgment is delivered on the appeal. In the present case that result is explained by two factors. First, although the offenders each received a lengthy sentence of imprisonment (being 10 years with a non-parole period of 6 years) the sentences were back-dated to the date when each was arrested and taken into custody, which was 5 July 2014. Thus, almost half of the non-parole period had been served by the date of sentencing.

4. Secondly, the notices of appeal were not filed until 14 January 2020. That lapse of almost three years from the date of sentencing requires explanation. The error of the sentencing judge now relied upon is the restricted approach taken to the early guilty pleas entered by each applicant. The judge accepted that they indicated “a willingness to facilitate the interests of justice”, but were “entered in the face of a strong Crown case”. [1] This approach gave no recognition to the fact that the pleas saved the time and expense of those involved in the administration of criminal justice which would have eventuated had been there been a contested trial. This aspect, conventionally referred to as “the utilitarian value of a plea”, is required to be taken into account in sentencing for State offences. The question was whether the requirement of the Crimes Act 1914 (Cth), s 16A(2)(g), that the court take into account the fact of a guilty plea, precluded a discount for the utilitarian value of the plea.

   1.    Sentencing Judgment, p 10.

5. In the face of conflicting authority, that question was resolved by a five judge bench of this Court in Xiao v R,[2] holding that “in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing.” That judgment, delivered on 5 February 2018, post-dated the sentencing of the applicants by some 10 months.

   2. (2018) 96 NSWLR 1 at [278] (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ).

6. An affidavit prepared by a solicitor employed by Legal Aid NSW sets out in careful detail the steps which were taken following the decision in Xiao. The steps commenced with the identification and review of cases involving federal sentences for whom Legal Aid had acted prior to February 2018. The aim was to identify those who may have been sentenced in accordance with an earlier view that no discount could be allowed for the utilitarian value of a plea. (A similar review had been undertaken following a change in the law resulting from the High Court judgment in Muldrock v The Queen. [3] )

   3. (2011) 244 CLR 120; [2011] HCA 39.

7. Suffice it to say that the administrative steps required were not straightforward and that some matters were given priority based on the dates of expiry of non-parole periods. Nevertheless, it is unfortunate that it took almost two years following Xiao before an appeal was filed on behalf of the applicants on 14 January 2020.

8. It is then necessary to address the approach to be taken to an application for an extension of time. In Kentwell v The Queen,[4] a case potentially affected by the Muldrock error, the Court concluded that an extension of time would normally be appropriate because error would engage the Court’s power to resentence. It was therefore not necessary to establish that the sentence would probably be varied, nor that some substantial injustice arose, before granting an extension of time within which to appeal. The plurality (French CJ, Hayne, Bell and Keane JJ) stated:

“[29]   … The interests of justice in the review of a sentence that has been imposed upon wrong sentencing principle and that is still being served are to be distinguished from the interests of justice in the review of a stale conviction.”

4. (2014) 252 CLR 601; [2014] HCA 37.

9. Since that decision, it has been usual to grant an extension of time where a material error has been identified in relation to an extant sentence.

10. In the present case, counsel for the Commonwealth Director of Public Prosecutions did not oppose an extension of time, nor the grant of leave to appeal. Nevertheless, care must be taken to ensure that principles are correctly applied. For example, had the issue been raised in the present case, but a submission that a discount should be given for the utilitarian value of the plea rejected, failure to lodge a timely appeal would have been a material consideration on a later application to extend time.

11. The issue did not arise for the first time in Xiao, nor did Xiao overrule an established line of authority for the contrary proposition, in which respect it differed from Muldrock. The propriety of excluding consideration of the utilitarian value of the plea had been raised in this Court in Director of Public Prosecutions (Cth) v Gow,[5] a decision delivered on 5 August 2015. The concerns raised in Gow were upheld by the Victorian Court of Appeal in Director of Public Prosecutions (Cth)v Thomas,[6] a decision handed down on 10 October 2016. One might assume that counsel involved in prosecuting and defending offences under federal law would be aware of, and inform a trial judge or sentencing judge of, decisions of any intermediate court of appeal applying federal law. In fact, the Director’s written submissions on the sentencing, after reference to authority supporting the view that no discount could be given for the utilitarian value of a plea, referred in a footnote to the “recent contrary view by the Victorian CCA that the utilitarian discount does have application.” [7] The case was not identified, by name or citation.

    5. [2015] NSWCCA 208; 252 A Crim R 573.

    6. (2016) 53 VR 546; [2016] VSCA 237.

    7.    Written submissions for Commonwealth Director, 23 January 2017, fn 10.

12. In the course of oral submissions on sentence, senior counsel for Mr Chen, although responding to aspects of the Director’s written submissions, dismissed the possibility of the plea providing a basis for a utilitarian discount. [8] Counsel for Mr Chuang identified the early plea of guilty, but said nothing about the way in which it could be taken into account. [9]

    8.    Tcpt, 20/12/16, p 7(33).

    9.    Tcpt, p 16(28).

13. Whatever else may be said about the conduct of the case before the sentencing judge, it cannot be said that either applicant waived or abandoned an acknowledged right to a utilitarian discount. Accordingly, regardless of the concession, it is appropriate to grant the extension of time.

14. Finally, as acknowledged by counsel on the appeal, the ruling in Xiao that there was power to take into account the utilitarian value of a guilty plea, was refined in Jinde Huang aka Wei Liu v R. [10] The holding, as summarised by Bathurst CJ at [9] was in the following terms:

“(1)   Sentencing judges should take into account the utilitarian value of a plea in Commonwealth sentencing offences. Failure to do so constitutes error.

(2)   It is desirable that any discount given for the utilitarian value be specified. However, a failure to do so would not of itself constitute error.”

Thus, the power identified in Xiao had, unsurprisingly, become a duty.

10. [2018] NSWCCA 70; 332 FLR 158; 272 A Crim R 266.

Discount for guilty plea

15. The distinction accepted in Xiao between the state of mind of the offender revealed by a plea, and the objective benefits to the administration of justice, gives rise to a number of consequential considerations.

16. First, the existence of a strong prosecution case may diminish the weight given to the willingness to facilitate the administration of justice, because it may reveal little less than acceptance of the inevitable. A strong prosecution case will generally not diminish the utilitarian value of the plea.

17. Secondly, whilst the subjective willingness to facilitate the administration of justice may be seen as a mitigating factor, it will not give rise to an arithmetical discount. In fact, it is apt to lead to confusion to describe such a subjective consideration, which may be closely related to factors such as contrition and remorse, as involving a “discount”. Referring to the strong prosecution case, the sentencing judge stated that “this clearly will affect the actual discount applied.” [11]

    11.    Sentencing Judgment, p 11.

18. Thirdly, although as a mitigating factor willingness to facilitate the course of justice should be established on the balance of probabilities, it should not be assumed that the existence of a strong prosecution case necessarily diminishes the factor to any particular extent. The court should state if it is satisfied that the plea was motivated partly or largely by the inevitability of conviction, or that no finding can be made.

19. Fourthly, subjective elements such as contrition and remorse may provide a basis for a finding that prospects of rehabilitation are good. That itself is a mitigating factor. Remorse may be demonstrated by a willingness to save the victim of the offence of the need to relive the events of the offending by giving evidence in court. However, such an attitude may also be described as willingness to facilitate the administration of justice. There is a danger that a multiplication of labels for what are essentially similar considerations may lead to double counting. That should be avoided. In particular, it suggests the need to avoid discounting for such factors, an exercise which implies a starting point reached without consideration of a particular factor, followed by a staged reduction. That may be the correct approach to adopt with respect to the utilitarian value of a plea; it is not appropriate with respect to most other mitigating factors, absent statutory authority.

20. ROTHMAN J: Chun Hung Chen and Chih Wen Chuang seek leave to appeal the sentence imposed upon them by Judge Tupman of the District Court on 31 March 2017. Each Applicant was a participant in a conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine. The maximum sentence for the offence, which is a contravention of s 11.5(1) and s 307.5(1) of the Criminal Code Act 1995 (Cth) (hereinafter “the Code”) is life imprisonment and/or fine in excess of $1 million.

21. Her Honour sentenced the Applicant Chen to imprisonment for 10 years to date from 5 July 2014 and expire on 4 July 2024, with a non-parole period of 6 years. Mr Chen, on the sentence imposed by Tupman DCJ, is first eligible for release on 4 July 2020. The Applicant Chuang had the same sentence imposed upon him; starting and concluding on the same dates as that for Mr Chen.

22. Apart from dealing with the grounds of appeal, the Court is required to deal with an application for an extension of time to pursue the application for leave to appeal. The application for an extension of time is not opposed.

23. The grounds of appeal for each offender are identical. The grounds of appeal are:

1. Ground 1: In determining the appropriate discount to reflect the value of the Applicants’ pleas of guilty in accordance with s 16A(2)(g) of the Crimes Act 1914 (Cth), the sentencing judge did not have regard to the utilitarian value of the pleas;

2. Ground 2: The Applicants have a justifiable sense of grievance when comparing the sentences imposed on them and the sentences imposed on co-offenders, Wen Chih Lai, Jun-YI Zhang and Yuan Ling Chang.

24. The conspiracy for which the current Applicants, Mr Chen and Mr Chuang, were sentenced, involved five offenders, being, the two Applicants, Mr Lai, Mr Chang and Mr Zhang. For ease of differentiation, I will refer to the co-offenders as Offender Lai, Offender Chang and Offender Zhang and the Applicants as Applicant Chen and Applicant Chuang.

25. Each of the five were charged with a single offence pursuant to s 11.5 (1) and s 307.5(1) of the Code, being, as stated, conspiracy to possess the commercial quantity of an unlawfully imported border control drug. The drug in question was methamphetamine, the pure quantity of which was 41.19 kg.

26. Each of the Applicants entered a plea of guilty in the Local Court, at the earliest possible opportunity, and was committed for sentence on 24 June 2015. Of the other offenders, Offender Chang also entered a plea of guilty in the Local Court but he, subsequently, sought unsuccessfully to withdraw his plea of guilty. The withdrawal motion was heard and refused by the sentencing judge.

27. Offenders Lai and Zhang both pleaded not guilty and their trial proceeded from 16 February 2016 to 7 April 2016, when a jury returned guilty verdicts for each of them.

28. As earlier stated, on 31 March 2017 Tupman DCJ sentenced all five offenders. Applicant Chen and Applicant Chuang were sentenced to imprisonment for 10 years, including a non-parole period of 6 years. The non-parole period expires on 4 July 2020. Offenders Lai and Zhang were sentenced to imprisonment for 8 years, with a non-parole period of 6 years. Offender Chang was sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 4 years and 6 months.

Facts

29. On 22 June 2014, a shipment containing a large piece of industrial equipment arrived in Sydney via sea cargo from China. On 24 June, it was examined by border control officers who identified 1 suitcase and 25 packages concealed inside the industrial equipment.

30. The 25 packages were examined and each of them contained about 1 kg of methamphetamine. The suitcase was also examined and it contained a further 25 packages, each containing 1 kg of methamphetamine. The total weight of the consignment of methamphetamine was 52.1 kg and the pure weight was 41.19 kg. Authorities substituted the methamphetamine with an inert material and the consignment was reconstructed and released for a controlled delivery.

31. On 2 July 2014, an officer of the Australian Federal Police (hereinafter “AFP”), purporting to be a courier driver, took the consignment to a house at Merrylands and met Offender Chang, who accepted delivery of the consignment and signed the delivery receipt. Offender Chang produced his passport as proof of identity.

32. The consignment was placed on the front lawn of the house. Thereafter, there were a number of telephone calls between the Applicant Chen and Offender Chang, in relation to the consignment, including directions from the Applicant to cover the equipment with a tarpaulin or car cover.

33. On 3 July 2014, Applicant Chuang called Offenders Lai and Zhang and told them to look for a larger storage unit. Later that day, Applicant Chuang, Applicant Chen and Offenders Lai and Zhang met at a Chinese restaurant in Auburn. The sentencing judge found, as a fact, that this was in relation to making plans to take possession of the drugs inside the consignment. [12] This finding is not the subject of challenge.

    12. Sentencing Judgment, p.4.

34. On 4 July 2014, Offender Chang, together with Offenders Lai and Zhang went to the Gardenia Motor Inn at Bass Hill and Offender Chang booked a room there for seven days, using his passport and paying $540 in cash. The sentencing judge found that this booking was made in order that the five conspirators had a place where the drugs could be taken, after they had been removed from inside the consignment. [13]

    13. Sentencing Judgment, p.4.

35. Later that day, there was further telephone contact between Applicant Chen and Offender Chang, in which Applicant Chen instructed Offender Chang in relation to dismantling the consignment for the purpose of gaining access to the drugs.

36. Law enforcement authorities then obtained and implemented surveillance warrants. There were telephone intercepts, physical surveillance of the Merrylands house and premises and a listening device inside the consignment, recording conversations and movements of the offenders. On 5 July 2014, Offender Chang commenced to dismantle the consignment. This was done on the instructions of Applicant Chen.

37. Offender Chang and others removed the wooden crating around the consignment. After that occurred, Applicant Chen arrived and used an angle grinder to gain access to a compartment inside the consignment, where the drugs had been secreted. Applicant Chen then used a crowbar to remove a steel wall to the secret compartment.

38. At that point, Applicant Chen was joined by Applicant Chuang, who had been at a nearby car park. The pair looked in the consignment to see what was there and then they both left.

29. Applicant Chen called Offender Chang and instructed him to take the bags out of the secret compartment. Offender Zhang arrived and provided transport for the drugs. Offender Chang removed all of the substituted drugs. He took them to two cars which had arrived at the scene and were parked nearby.

30. One of the cars was driven by Offender Zhang and the other by Offender Lai. Applicant Chuang then instructed Offender Zhang to drive to the Gardenia Motor Inn. Offender Chang drove the car, with Offender Lai as a passenger. Offender Zhang drove to the Motel in his own car. As earlier stated, Applicants Chen and Chuang had already left the premises and they drove to the Motel together in a third car.

31. On arrival at the Motel, Applicants Chuang and Chen and Offender Zhang carried the luggage with the drugs from the two cars into the room that had previously been booked. Applicant Chuang paid Offender Lai $600 for his work for that day and the previous day.

32. At 1:47 PM on 5 July 2014, police intercepted and arrested Offender Zhang. At 1:53 PM on that day, police intercepted and arrested Offenders Chang and Lai. Very soon thereafter, the police intercepted and arrested Applicants Chen and Chuang.

Findings of Sentencing Judge

43. The sentencing judge made the appropriate findings in relation to the five conspirators, but I reiterate only those that are particularly relevant to the matters before the Court. The evidence did not establish that any of the five conspirators was anything vaguely approaching the role of a principal in relation to the importation and, for most of them, the evidence was either silent or incomplete as to what, if anything, they were to gain as a result of their involvement in these offences. Nevertheless, her Honour found that there can be no doubt that each committed the offences for financial gain.

44. Each of the offenders played an important, if not essential, role in the conspiracy and each of them took steps to seek to ensure that they were not detected. The Applicants Chen and Chuang had appropriately the same role, which was "more important in the overall conspiracy than the roles played by [Offenders] Lai and Zhang".

45. Each of the Offenders Lai and Zhang played the same role as each other. Offender Chang was subordinate to each of the Applicants and towards the lower end of the syndicate, as were Offenders Lai and Zhang. Nevertheless, Offender Chang undertook different tasks to those performed by Offenders Lai and Zhang.

46. Applicants Chen and Chuang undertook a role that, in large part, was the giving of directions to the others, by making arrangements and passing on messages. On occasions, Applicant Chen directed both Offenders Chuang and Zhang, sometimes by telephone, particularly in the early stages, concerning the dismantling of the consignment. His role was not confined to a role of direction, because he was also physically involved in the dismantling process. It was Applicant Chen who used an angle grinder and a crowbar to gain access to the consignment.

47. Applicant Chuang also instructed others regarding the plan to take possession of the drugs, including the rental of a property and storage spaces. Mainly, these were directions given to Offenders Lai and Zhang. Applicant Chuang also instructed Offender Lai about installing an anti-surveillance CCTV camera in a car near the Merrylands premises that had been rented and also the provision of funds to others, from time to time, for the work that they had done and to enable the room to be booked and occupied.

48. Nevertheless, her Honour determined that neither of the Applicants is at the top of the syndicate, whatever its complete structure might have been. There is no evidence that any of the conspirators that were before the Court, including the two Applicants, had any role in the actual importation, or arranging for the importation, of the drugs.

49. Her Honour the sentencing judge determined that Offenders Lai and Zhang were lower in the hierarchy and towards the bottom of the conspiracy. Each was undertaking tasks on instruction, usually tasks of a more menial nature and they were akin to couriers, taxi drivers, and, apart from such tasks, installed the camera surveillance device to which reference has already been made. The other activities undertaken were of similar kind.

50. Each of Offenders Lai and Zhang had been living in Australia for about two years, working in legitimate jobs, prior to and at the time they commenced committing these offences. There is no evidence or suggestion that either had come to Australia solely for the purpose of being involved in those offences.

51. Offender Chang played a role towards the bottom of the syndicate, slightly higher than Offenders Lai and Zhang, and for a shorter period than Offenders Lai and Zhang, but, unlike Offenders Lai and Zhang, the sentencing judge took the view that he had actually come to Australia with the sole purpose of engaging in this conspiracy to possess the drugs. [14]

    14. See Sentencing Judgment, pp 9-10.

52. Offender Chang undertook tasks such as housesitting for the premises at Merrylands for the purpose of ultimately taking possession of the drugs. He also had a role assisting and unpacking the drugs and taking them to the motor inn, as described earlier in these reasons, which he had booked.

53. The sentencing judge took the view that Applicants Chen and Chuang were above the bottom of the range, "perhaps not quite to intermediate, but around that level”. Each was trusted to make arrangements by those who were indisputably more senior in the syndicate and the Applicants were directing others. However, neither was making these decisions himself and the decisions and conduct were directed by persons who are unknown and at a much higher level in the syndicate.

54. The sentencing judge also, as is required, reached a number of conclusions in relation to the subjective circumstances of each of the conspirators whom her Honour was required to sentence. In relation to each of the Applicants, her Honour made the following findings:

1. Each has good prospects of rehabilitation; [15]

2. There are no criminogenic factors which would affect an assessment of the prospects of rehabilitation for either of them;

3. Each of the five offenders were Taiwanese citizens and none of them have any criminal convictions either in Taiwan or here in Australia; [16] and

4. Each of the offenders have, to some extent at least, some inability to be able to speak and understand English, which will render the time spent in prison as more difficult than for an ordinary offender.

   15. Sentencing Judgment, [23].

   16. Sentencing Judgment, [12]-[13].

55. Her Honour made the following particular subjective findings in relation to the Applicant Chen:

1. He was 30 years of age and had a stable upbringing in Taiwan;

2. He came to Australia on a working holiday;

3. He had the support of his parents in Taiwan and he would return to them when he is released from prison;

4. He was educated to the end of secondary level, but not beyond;

5. He was employed in a hotel in Taiwan for about three years;

6. He committed this offence for financial gain and has admitted that circumstance;

7. The financial gain that he sought was, he claims, in order to assist his father to repay debts.

56. Further, her Honour found that the Applicant Chen was and is remorseful, which he expressed. Her Honour also took into account the plea of guilty as indicating that remorse. Other than the offending, the Applicant Chen has worked in paid employment and will work in the future.

57. As to the Applicant Chuang, the sentencing judge made the following findings as to subjective circumstances:

1. He was, at the time of sentence, aged 34;

2. He had been to Australia previously for a period in September 2012 and returned in February 2014 for four months before being involved in these offences;

3. He had a good upbringing in Taiwan, but behaved badly at school and this behaviour affected his education;

4. He was not educated beyond a junior high school level;

5. He had substance abuse issues that were present at the time he committed the offence;

6. He often abused alcohol and occasionally used cannabis in Taiwan, before he came to Australia;

7. In Australia, the Applicant Chuang used ecstasy significantly and was probably using the drug at the time that the offence was committed;

8. The evidence does not allow for a finding, even on the balance of probabilities, that he was relying on his drug addiction as the reason for his involvement in the offence;

9. He committed the offence for financial gain, but the details of the gain are not available;

10. Since his incarceration, the Applicant Chuang has stopped using ecstasy, which is positive for his prospects of rehabilitation;

11. He has also been working in gaol and undertaking courses;

12. The sentencing judge allowed some assessment of genuine remorse and contrition, on the basis of his admission as to his involvement in the offence, even though some of the details and history do not necessarily fit, precisely, with the evidence as it was called;

13. There are positive references as to his character, his prospects of rehabilitation are good, affected, as it must be, by any recommencement of the abuse of drugs and he is likely to obtain employment.

58. Given the agreement of the Crown that error was disclosed in the sentencing process, it is appropriate, at this point, to indicate, very briefly, the evidence that was adduced, if the Court is required to re-sentence. For the Applicant Chen, there is an Affidavit, affirmed 3 March 2020, which provides prison records and certificates for courses completed and shows an absence of punishments or regressions. There is also a Work Release Order, which provides, as much as anything, the custodial authority’s view of his rehabilitation. Also provided are NSW Justice Health Records, showing that the Applicant Chen suffers from epilepsy, for which he is medicated and is, as a consequence, stabilised.

59. The evidence on resentencing for the Applicant Chuang is an Affidavit, affirmed 3 January 2020, which annexes prison records and certificates for courses completed. This, too, shows an absence of punishments or regressions and the existence of a Work Release Order, on which I make the same comment as for Applicant Chen, without repeating it.

Submissions and Conclusion

60. As already stated, there are two grounds of appeal. The first ground is conceded by the Director of Public Prosecutions (hereinafter “DPP”). Of itself, that agreement does not relieve the Court of its duty to examine the issue raised.

61. The ground asserts that her Honour did not give a discount for the utilitarian value of an early plea of guilty (the earliest plea of guilty) in the Local Court. The Applicants rely upon Xiao v R. [17] Xiao was a judgment of a five-member bench (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) in which the Court, citing Director of Public Prosecutions (Cth) v Thomas, [18] expressed the view that s 16A(2)(g) of the Crimes Act 1914 (Cth) (hereinafter the “Crimes Act”) required a court to take into account the utilitarian value of a guilty plea, when considering the fact that a person has pleaded guilty to an offence: Xiao at [269]-[278]. The Court at [280] also made it clear that, when applying a discount for the utilitarian value of a guilty plea, there is no obligation on the sentencing judge to specify, precisely, the amount of that discount, but made the comment that it is desirable that the discount be specified.

    17. (2018) 96 NSWLR 1; [2018] NSWCCA 4.

    18. (2016) 53 VR 546; [2016] VSCA 237.

62. Her Honour, in sentencing the two Applicants at a time prior to the judgment in Xiao, allowed for a discount for their "willingness to facilitate the interests of justice" and referred to s 16A(2)(g) of the Crimes Act. As stated above by reference to the judgment of the Court in Xiao, s 16A(2)(g) of the Crimes Act deals with the fact that a person has pleaded guilty and allows a discount to accommodate the utilitarian value of the plea of guilty. The provisions of s 16A(2)(h) of the Crimes Act required the Court to take into account the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences.

63. Her Honour’s reference to s 16A(2)(g) of the Crimes Act is a reference to the fact that each Applicant had pleaded guilty to the charge and, as stated, the provisions required her Honour to take into account the utilitarian value of the plea of guilty. It may be that her Honour had that in mind when her Honour referred to each Applicant's willingness to facilitate the interests of justice.

64. That latter term is a term usually associated with sentencing for State Offences, pursuant to the terms of s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Ordinarily, it does not equate with the utilitarian value of the plea of guilty.

65. It is important to note that there are at least three similar concepts. First, there is the utilitarian value of the plea of guilty, particularly when that plea is taken at the earliest possible opportunity, as is the case with these two Applicants.

66. Secondly, there is that which is described in s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which has no application to the sentencing process which her Honour was undertaking, because the Crimes Act, to which earlier reference has been made, dealt with the legislative basis for the reduction of penalties.

67. Thirdly, there is a power to reduce a penalty for assistance, which is, like the plea of guilty, a factor when sentencing both for Federal Offences and for State Offences: see s 16A(2)(h) of the Crimes Act and s 23 of the Crimes (Sentencing Procedure) Act (1999) (NSW).

68. It is important for a sentencing judge, and this Court, not to elide the concepts and not to double count the effect of the plea of guilty.

69. Further, I would ordinarily be reluctant to find error in the comment made, only on the basis that her Honour mis-described the effect of s 16A(2)(g) of the Crimes Act, particularly after express reference to that provision. Nevertheless, the Crown concedes the point and, on a reading of the Judgment on Sentence, it is unclear whether her Honour was providing a discount for the utilitarian value of the plea of guilty, as the paragraph requires, or for the facilitation of the administration of justice, which is a different, or may be a different, concept.

70. Overall, I accept that error has occurred and the Court is required to re-sentence. Since the drafting of the foregoing, I have had the opportunity to read the draft reasons of Basten JA. I am grateful for the more complete explanation of his Honour and agree fully with his Honour’s additional comments.

Re-sentencing

71. No challenge has been made to the findings of the sentencing judge and the Court, in those circumstances, cannot sentence on any other basis. Further, there are agreed facts which form the substantial basis for the sentencing exercise.

72. It should be added that an agreement as to facts, which obviates the necessity for a contested hearing at sentence, may be a factor which, ordinarily, facilitates the administration of justice. This is a matter that goes beyond the utilitarian value of the plea of guilty, which obviates the necessity for a jury trial.

73. During the course of the appeal hearing, counsel appearing for the DPP submitted that something less than 25% discount should be allowed, because her Honour had allowed some discount for the facilitation of the administration of justice. Accepting this to be correct, in ordinary circumstances, it seems to be an irrelevant consideration, because the Court is required to re-sentence afresh and would not be mathematically, or otherwise, adding to or subtracting from the sentence imposed by her Honour below.

74. The one issue of contention as to the facts which were before the Court relates to the parity issue that forms the basis of Ground 2. It is unnecessary to deal with the merits of Ground 2, because the Court is required to re-sentence: Kentwell v The Queen.[19]

    19. (2014) 252 CLR 601; [2014] HCA 37.

75. Nevertheless, parity is an important aspect in the process of sentencing. As has been made clear on a number of occasions, the norm of “equality before the law" is embodied within the term "equal justice", which is an aspect of the rule of law and which, in sentencing, finds expression in the "parity principle".

76. Equal justice requires identity of outcome in cases that are relevantly identical and requires different outcomes in cases that are relevantly different. Further, it requires a rational basis for the different outcomes in relevantly different circumstances: Green v The Queen; Quinn v The Queen; [20] Wong v The Queen; Leung v The Queen; [21] Jimmy v R. [22]

    20. (2011) 244 CLR 462; [2011] HCA 49.

    21. (2001) 207 CLR 584; [2001] HCA 64

    22. (2010) 77 NSWLR 540; [2010] NSWCCA 60.

77. Her Honour came to a conclusion that the Applicants were above the bottom of the range and around the level of an intermediate level in the conspiracy, which gave rise to the offences committed. It is not clear what evidence was used to come to the view that the Applicants were at or about the intermediate level of the conspiracy. There can be little doubt that the Applicants were at a level above the other Offenders, but the fact that they gave somewhat menial directions, does not, beyond reasonable doubt, put them at the intermediate level of the entire conspiracy.

78. On one view, at least, a person who came to Australia for the primary purpose of being engaged in the conspiracy may be at or above the level of those that were giving menial directions.

79. In re-sentencing, I take into account that the Applicants are at a level higher than the other Offenders, but I do not find that they were at the intermediate or almost at the intermediate level of the conspiracy.

80. Bearing in mind the need for the application of the parity principle and bearing in mind that the Offenders Lai and Zhang were sentenced, after trial, to a term of imprisonment of eight years, with a non-parole period of six years, and Offender Chang was sentenced to a term of imprisonment of seven years and six months, with a non-parole period of four years and six months, it seems that the appropriate starting point for the head sentence for each of the two Applicants is of term of imprisonment of 12 years.

81. I deduct a 25% discount for the utilitarian plea of guilty and would impose upon each of them a sentence of imprisonment of nine years, with a non-parole period of five years and six months. I do so on the basis of confirming the findings otherwise made by her Honour below.

82. I would propose that the Court make the following orders:

1. Extension of time granted to the Applicants so as to allow the filing of the applications for leave to appeal and the appeal;

2. Leave to appeal granted;

3. Appeal allowed;

4. The sentence imposed by the District Court on 31 March 2017 on Chun Hung Chen be quashed and in lieu thereof Chun Hung Chen be sentenced to a term of imprisonment of 9 years commencing 5 July 2014 and expiring 4 July 2023, with a non-parole period of 5 years and 6 months, concluding 4 January 2020;

5. The sentence imposed by the District Court on 31 March 2017, on Chih Wen Chuang be quashed and in lieu thereof Chih Wen Chuang be sentenced to a term of imprisonment of 9 years, commencing 5 July 2014 and expiring 4 July 2023, with a non-parole period of 5 years and 6 months, concluding 4 January 2020.

6. Each of Mr Chen and Mr Chuang were first eligible for parole on 4 January 2020.

83. CAVANAGH J: I agree with Rothman J.

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Endnotes

Decision last updated: 03 April 2020