Ge v The Queen - [2019] NSWCCA 41

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ge v R [2019] NSWCCA 41
Hearing dates: 26 October 2018
Decision date: 01 March 2019
Before: Hoeben CJ at CL [1]
Davies J at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) The sentence imposed by Acting Judge Delaney in the District Court on 25 September 2017 date is quashed.
(3) In substitution, the applicant is sentenced to a head sentence of 6 years 4 months, with a non-parole period of 3 years 6 months, each commencing on 24 August 2016, with the head sentence expiring on 23 December 2022, and the non-parole period expiring on 23 February 2020.
(4) The first date upon which the applicant will be eligible for possible release to parole is 23 February 2020.

Catchwords: CRIMINAL LAW — Appeal against sentence — Commonwealth offence — Importation of large commercial quantity — guilty plea — utilitarian value of guilty plea not explicitly taken into account at first instance — principle in Xiao v R (2018) 96 NSWLR 1 — Crown conceded error — Court exercised sentencing discretion afresh — utilitarian value of guilty plea taken into account upon resentence — lesser sentence warranted in law
Legislation Cited: Commonwealth Criminal Code, s 307.11(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 98(3)
Crimes Act (Cth), s 16A(2)(g)
Cases Cited: Lehn v R (2016) 93 NSWLR 205; (2016) 262 A Crim R 537; [2016] NSWCCA 255
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category: Principal judgment
Parties: Yixing Ge (Appellant)
Regina (Respondent)
Representation:
Counsel:
P Lowe (Appellant)
S Callan (Respondent)
Solicitors:
Tully & Chiper Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/159599
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 September 2017

Before:

Delaney A/DCJ

File Number(s):

2014/359498

HOEBEN CJ at CL: I agree with Button J and the orders which he proposes.
DAVIES J: I agree with Button J.
BUTTON J:

Introduction

On 25 September 2017, following a plea of guilty, Mr Yixing Ge (the applicant) was sentenced by Acting Judge Delaney in the District Court at Parramatta for an offence of importing a commercial quantity of ephedrine (a border controlled precursor), contrary to s 307.11(1) of the Commonwealth Criminal Code. That offence carries a maximum penalty of imprisonment for 25 years and a very large fine.
The applicant, at the time the offence was committed, was subject to a 15 month suspended sentence for dishonestly obtaining a financial advantage. He had 6 months left of that suspended sentence before it expired. Pursuant to s 98(3) (as it then was) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that sentence was revoked, and the applicant was resentenced by his Honour.
For the…

Grounds of appeal

[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.

Continue reading Ge v The Queen

Details

AGLC: Ge v The Queen [2019] NSWCCA 41
Case: [2019] NSWCCA 41
Decision Date: 01 March 2019

CaseChat Overview and Summary

The appellant was found guilty of importing a large commercial quantity of a controlled substance, an offence against the Commonwealth. The appellant appealed against the sentence imposed, arguing that the trial judge did not take into account the utilitarian value of the guilty plea. The High Court of Australia heard the appeal. The central legal issue was whether the trial judge's failure to consider the utilitarian value of the appellant's guilty plea constituted an error warranting resentencing. The court examined the principle set out in Xiao v R, which held that the failure to consider the utilitarian value of a guilty plea is an error of law that may lead to resentencing. The Crown conceded that the trial judge had erred in not taking into account the utilitarian value of the guilty plea. The High Court exercised its sentencing discretion afresh, considering the utilitarian value of the guilty plea and ultimately determining that a lesser sentence was warranted.

The High Court found that the trial judge's failure to consider the utilitarian value of the guilty plea was an error of law. The court acknowledged that a guilty plea can have significant benefits for the administration of justice, such as reducing the burden on the court system and allowing for a more efficient resolution of the case. The High Court exercised its discretion to resentence the appellant, taking into account the utilitarian value of the guilty plea. The court concluded that, in light of the guilty plea and its benefits, a lesser sentence was warranted in law. The High Court reduced the sentence imposed by the trial judge, reflecting the appellant's acceptance of responsibility and the benefits of a guilty plea.

Orders