Jinde Huang Aka Wei Liu v R

[2018] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jinde Huang aka Wei Liu v R [2018] NSWCCA 70

Hearing dates:

24 July 2017

Date of orders:

20 April 2018

Decision date:

20 April 2018

Before:

Bathurst CJ at [1]
Beazley P at [10]
Hoeben CJ at CL at [23]
McCallum J at [26]
Bellew J at [27]

Decision:

(1)   Leave to appeal against sentence granted.

 

(2)   Appeal allowed.

 

(3)   Sentences imposed in the District Court of NSW on 29 March 2016 quashed.

 

(4)   In lieu thereof:

 

(i) In respect of the offence contrary to the Criminal Code (Cth), s 400.9(1), the applicant is sentenced to a term of imprisonment of 2 years, 3 months commencing on 18 December 2013 and expiring on 17 March 2016.

 

(ii) In respect of the offence contrary to the Criminal Code 1995 (Cth), s 307.1(1), the applicant is sentenced to a term of imprisonment of 13 years commencing on 17 June 2014 and expiring on 16 June 2027.

 

(iii)   The total term of imprisonment is 13 years, 6 months commencing on 18 December 2013 and expiring on 17 June 2027.

 (iv) Specify a single non-parole period of 9 years, 5 months commencing on 18 December 2013 and expiring on 17 May 2023.

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Federal offences – Failure to have regard to utilitarian value of plea of guilty in assessing discount – Error established – Applicant resentenced

  CRIMINAL LAW – Sentence – Appeal – Federal offences – Discount for plea of guilty – Necessity to specify the discount which is given in terms which ensure transparency in the sentencing process and precision in the sentence imposed – Observations as to the practice of expressing discount by reference to a range

Legislation Cited:

Criminal Code 1995 (Cth)
Crimes Act 1914 (Cth)

Cases Cited:

Ayache v R [2013] NSWCCA 41
Director of Public Prosecutions (Cth) v Thomas (2016) 347 ALR 275; [2016] VSCA 237
Ghobrial v R [2012] NSWCCA 221
Hall v R [2017] NSWCCA 260
Hili v R (2010) 242 CLR 520; [2010] HCA 45
House v R (1936) 55 CLR 499; [1936] HCA 40
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v Burton [2008] NSWCCA 128
R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Xiao v R [2018] NSWCCA 4
Yuksel v R [2010] NSWCCA 65

Category:

Principal judgment

Parties:

Jinde Huang aka Wei Liu (Applicant)
Regina (Crown)

Representation:

Counsel:
H Dhanji SC and R Burgess (Applicant)
S McNaughton SC, T Prince and R Ranken (Crown)

  Solicitors:
Legal Aid New South Wales (Applicant)
Director for Public Prosecutions (Cth) (Crown)

File Number(s):

2014/00201137-004

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 March 2016

Before:

Bennett SC DCJ

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgments of Beazley P and Bellew J in draft. I gratefully adopt Bellew J’s summary of facts and the applicant’s subjective circumstances.

2. For the reasons given by Bellew J, I agree that ground 1 of the grounds of appeal has been made out.

3. I would add the following. Beazley P has referred with approval to certain remarks of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237. While I do not disagree with these remarks, it is important to emphasise that a discount for the utilitarian value of a guilty plea can and should be given in appropriate cases, even where there is no subjective willingness to facilitate the course of justice. In the present case, as Bellew J points out, the sentencing judge did not take into account the utilitarian value of the guilty plea. The failure to do so meant that he was in error irrespective of whether this Court ultimately came to the view that the discount given adequately reflected both the applicant’s willingness to facilitate the course of justice and the utilitarian value of his guilty plea.

4. In these circumstances, it is not necessary to determine whether ground 2 has been made out. In Xiao v R [2018] NSWCCA 4 (Xiao v R), this Court pointed out at [280] that it was desirable, in the interests of transparency, to disclose the actual percentage discount given, although failure to do so would not of itself amount to an error.

5. Similar considerations suggest that it is desirable to specify the precise discount given, rather than specify a range as the sentencing judge did in the present case. Further, as pointed out by Howie J in R v Knight (2007) 176 A Crim R 338; [2007] NSWCCA 283 at [38], failure to specify the exact discount can mean that neither the offender nor the Court of Criminal Appeal can have confidence that it was applied to result in an appropriate discount to the sentence.

6. Although, as presently advised, I am of the same view as Beazley P and Bellew J that it is erroneous to specify a range of discounts (R v Knight (2007) 176 A Crim R 338; [2007] NSWCCA 283 at [38]; R v Burton [2008] NSWCCA 128 at [121]; cf Ayache v The Queen [2013] NSWCCA 41 at [13]-[15]; JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [61]), it is unnecessary to finally determine whether, in the context of sentencing for a Commonwealth offence, specifying a range of discounts is erroneous.

7. So far as resentencing is concerned, I agree with the sentence proposed by Bellew J for the s 307.1(1) offence for the reasons given by him and Beazley P. In relation to the sentence for the s 400.9(1) offence, I agree with the sentence proposed by Beazley P and with her reasons, particularly her emphasis on the need for general deterrence for offences of this nature.

8. In the result, I agree with the orders proposed by Beazley P.

9. Because somewhat divergent views have been expressed on the issues raised in this appeal, it may be of assistance to specify the approach which should be taken by sentencing judges in dealing with the utilitarian value of a plea of guilty in respect of Commonwealth offences having regard to the decision in Xiao v R and the judgment handed down in the present case:

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.

3. It is an error to specify a range of percentage discounts as distinct from a specific percentage.

10. BEAZLEY P: I have had the advantage of reading in draft the reasons of Bellew J. His Honour has helpfully set out the facts of the applicant’s offending conduct and the findings of the sentencing judge, including in respect of the applicant’s subjective case. That enables me to move immediately to the grounds of appeal. In this regard, I agree with his Honour in respect of ground 2, which means that the applicant falls to be resentenced by this Court: see Kentwell v R (2014) 252 CLR 601; [2014] HCA 37.

11. However, I wish to make certain observations in respect of ground 1 and the sentence that I would, by way of resentence, impose on the applicant. I am able to state my reasons in respect of both matters relatively briefly.

12. As Bellew J explains, this Court, in Xiao v R [2018] NSWCCA 4, determined that when sentencing for a Commonwealth offence pursuant to the Crimes Act 1914 (Cth), s 16A, a sentencing judge is entitled to take into account the utilitarian value of a plea of guilty. In the present case, the sentencing judge allowed a discount in respect of the applicant’s pleas of guilty for both offences. In determining the extent of the discount that was appropriate, his Honour had regard to the time at which the plea was entered in respect of each offence and the fact that the applicant’s decision to plead guilty was in the face of a strong Crown case. In this respect, the applicant’s decision to plead guilty to the offences was to be seen as a recognition of the inevitable. There was no error in his Honour taking those factors into account.

13. Nor was there any error in his Honour determining that, as the pleas were taken to be a recognition by the applicant of the strong Crown case, the discount for the pleas should be modest. That finding was an evaluative judgment of his Honour based on the evidence. For any challenge to that evaluation to be successful, the applicant had to demonstrate error on the bases that apply in respect of a discretionary decision, as stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505: see Yuksel v R [2010] NSWCCA 65; Ghobrial v R [2012] NSWCCA 221. No such error has been demonstrated. For that reason, I would reject ground 1(b).

14. There is a separate question as to whether the sentencing judge took into account the utilitarian value of the pleas. His Honour, at ROS 2, stated that the pleas of guilty had “to an extent facilitate[d] the course of justice”. Given the challenge raised by ground 1(a), it is salient to refer to the conceptual difference between facilitating the course of justice and the utilitarian value of a plea and the extent to which both considerations are required to be reflected in the sentence imposed or, to put it another way, in the discount allowed for the plea.

15. These matters were the subject of comment in Director of Public Prosecutions (Cth) v Thomas (2016) 347 ALR 275; [2016] VSCA 237, in remarks with which I agree. There the Court stated, at [7]:

“(g)   A willingness to facilitate, or co-operate in, the course of justice is manifested by an offender’s plea of guilty. The plea, by its very nature, constitutes an acknowledgement that the charge has been rightly laid and evidences a preparedness by the offender to relinquish his or her right to contest the charges and to submit to punishment. The offender’s willingness to follow that course, often described in the authorities as ‘co-operation’, vindicates the course of justice, saves the community the expense of a trial and releases witnesses from the ordeal of a trial. These considerations provide the primary basis for the discount for a plea of guilty.

(h)   As a willingness to cooperate with the course of justice is evidenced by the fact of the plea, the discount continues to be allowed regardless of the presence of motives of self-interest or the absence of remorse. Ordinarily there will be no material difference between the discount to be allowed for a willingness to facilitate the course of justice and the objective utilitarian value of that plea. However, the subjective circumstances of the offender, including his or her willingness to facilitate the course of justice, will not always have the same mitigating weight as the utilitarian benefit of avoiding a contested trial. For that reason, while statute requires a sentencing court to have regard to the fact of a plea of guilty, it is important that the utilitarian benefit be adequately reflected …”

16. In the case before the Court, I agree with Bellew J that as the sentencing judge made no reference to the utilitarian value of the plea, it is likely that his Honour did not take it into account and thereby erred. Having said that, the question is whether that omission had any impact on the appropriate discount for the pleas. That is the subject of the applicant’s challenge in ground 1(c). However, it is not necessary to dwell on that question, as I agree with Bellew J that ground 2 of the appeal should be allowed. In that ground, the applicant contended that the sentencing judge erred in specifying a range between which the discount for the plea fell. As I consider ground 1(a) and ground 2 should be allowed, the applicant falls to be resentenced by this Court.

17. Bellew J did not consider it necessary to determine ground 3 of the appeal, which contended that the sentence imposed for the s 307.1(1) offence of importing a commercial quantity of a border controlled drug, as well as the effective total sentence, was manifestly excessive. However, it is relevant to consider the parties’ submissions on this ground of appeal, as they are relevant to the question of the appropriate sentence this Court should impose in the exercise of its resentencing discretion.

18. The applicant referred the Court to the sentences imposed in a series of cases said to be relevantly comparative to the circumstances in this case. The Crown accepted that these cases, in which terms of imprisonment of between 15 years and 17 years, 10 months were imposed, indicated a “yardstick” for sentences for similar offending conduct. The Crown also accepted that the sentence imposed by the sentencing judge, whilst severe, was “within range” for similar offending conduct.

19. It is not necessary in this case to revisit the principles that govern the use of sentencing statistics or sentences imposed in comparable cases. They are well known. It may also be accepted, as the Crown acknowledged, that the sentence imposed by the sentencing judge was at the “top of the range” of sentences imposed for similar offending conduct. This was understandable given that there was little to be said of the applicant’s subjective circumstances that warranted leniency.

20. There was additional evidence before the Court to which Bellew J refers at [68] to the effect that the applicant is seeking to make constructive use of his time in custody. That evidence is a hopeful indication that the applicant has some prospects of rehabilitation and I consider that is relevant to the sentence to be imposed on resentence. For that reason, I agree with the sentence proposed by Bellew J in respect of the s 307.1(1) offence and the discount that his Honour proposes for that offence.

21. However, I consider that the sentence imposed by the sentencing judge in respect of the s 400.9(1) offence was the appropriate sentence on the assumption that a 10 per cent discount was applied. The offence is a serious offence and questions of general deterrence are of particular importance. Apart from the recent indications that the applicant has some positive prospects of rehabilitation, none of his subjective circumstances called for any particular leniency. I have taken the applicant’s prospects of rehabilitation into account in relation to the s 307.1(1) offence and do not consider that those prospects call for any further consideration in sentencing on this charge. Accordingly, I would start with a sentence of 2 years, 6 months, to which I would apply a discount of 10 per cent. The sentence to be imposed is therefore 2 years, 3 months. I otherwise agree with Bellew J’s assessment of the appropriate discount to be applied and that there should be accumulation, as well as with the degree of accumulation proposed by his Honour.

22. Accordingly, I propose the following orders:

(1)   In respect of the offence contrary to the Criminal Code (Cth), s 400.9(1), the applicant is sentenced to a term of imprisonment of 2 years, 3 months commencing on 18 December 2013 and expiring on 17 March 2016.

(2)   In respect of the offence contrary to the Criminal Code1995 (Cth), s 307.1(1), the applicant is sentenced to a term of imprisonment of 13 years commencing on 17 June 2014 and expiring on 16 June 2027.

(3)   The total term of imprisonment is 13 years, 6 months commencing on 18 December 2013 and expiring on 17 June 2027.

(4)   Specify a single non-parole period of 9 years, 5 months commencing on 18 December 2013 and expiring on 17 May 2023.

23. HOEBEN CJ at CL: I agree with Bellew J that Ground 1(a) is made out for the reasons his Honour has stated.  I also agree with the additional reasons of Bathurst CJ and Beazley P for reaching that conclusion.

24. I agree with Bellew J for the reasons given by his Honour that Ground 2 has been made out.  On that issue, I also agree with the additional reasons by Bathurst CJ, albeit expressed somewhat tentatively.  I agree with the observations by McCallum J that it is permissible to specify a discount in such terms as are necessary to avoid sentencing in weeks and days, provided that the approach adopted affords certainty and transparency.

25. In relation to re-sentencing, I agree with the sentence proposed by Bellew J for the s 307.1(1) offence for the reasons given by his Honour and Beazley P. In relation to the sentence for the s 400.9(1) offence, I agree with the sentence proposed by Beazley P and with her Honour’s reasons.

26. McCALLUM J: I agree with Bellew J that ground 1(a) is made out, for the reasons his Honour has stated.  As to ground 2, I agree with Bellew J that, in the circumstances of this case, the specification of a range between which the discount fell produced such uncertainty as to amount to error.  To be clear, in my view the error lies in the uncertainty produced in the present case owing to the length of the sentence and the quantum of the range.  In my view, however, it is permissible to specify a discount in such terms as are necessary to avoid sentencing in weeks and days, such as a discount of “about x%”, or a discount that is said to have been rounded up for that purpose, or a discount expressed in years or months rather than as a percentage, provided always that the approach adopted affords certainty and transparency. I agree with the orders proposed by Bellew J.       

27. BELLEW J: On 29 March 2016 Jinde Huang aka Wei Liu (the applicant) appeared before the District Court for sentence in respect of two offences contrary to the Criminal Code 1995 (Cth) (“the Code”). The first, to which the applicant had previously pleaded guilty in the Local Court, was in the following terms:

“Between about 29 November 2013 and 18 December 2013 at Sydney New South Wales imported a substance, the substance being a border controlled drug, namely methamphetamine and the quantity imported being a commercial quantity contrary to s. 307.1(1) of the Criminal Code (Cth).”

28. The maximum penalty for that offence is life imprisonment and/or a fine of $1,275,000.00.

29. The second, to which the applicant had pleaded guilty immediately before the commencement of his trial, was contained in a separate indictment and was in the following terms:

“Between about 21 May 2012 and about 15 November 2013 at Sydney in the State of New South Wales did deal with money or other property it being reasonable to suspect that such money or other property was the proceeds of crime and at the time of the dealing the value of the money was $100,000.00 or more, contrary to subsection 400.9(1) of the Criminal Code.”

30. The maximum penalty for that offence is 3 years imprisonment and/or a fine of $30,600.00.

31. In respect of the first offence the applicant was sentenced to imprisonment for 15 years commencing on 18 December 2014 and expiring on 17 December 2029. In respect of the second, he was sentenced to imprisonment for 2 years and 3 months commencing on 18 December 2013 and expiring on 17 March 2016. The total sentence was one of 16 years imprisonment. The sentencing judge specified a single non-parole period of 11 years imprisonment, to expire on 17 December 2024.

32. The applicant now seeks leave to appeal against those sentences on the following grounds:

1. The learned sentencing judge erred in his assessment of the significance of the applicant’s pleas of guilty and the discounts allowed by:

1. failing to take into account the utilitarian value of the pleas;

2. finding the discounts allowed for the pleas of guilty should be relatively modest because the applicant’s decision to plead was a recognition of the inevitable in the light of the strong Crown case;

3. finding that the pleas of guilty involved only a modest facility to the judicial process, warranting, for the s 307.1(1) offence, a discount of between 10% and 15%, and for the s 400.9 offence, a discount of between 5% and 10%.

2. The learned sentencing judge erred in specifying a range between which the discount for the pleas of guilty fell.

2. The sentence imposed for the importation offence (s 307.1 offence), and the effective total sentence, are manifestly excessive.

The facts of the offending

33. The sentence judge found the facts of the applicant’s offending to be as follows (commencing at ROS 2):

“THE IMPORTATION OF THE BORDER-CONTROLLED SUBSTANCE

The offender came to this country on 16 September 2005 from the People's Republic of China. He remained here without authority to do so.

In November 2013 the Australian Federal Police commenced an investigation into the importation of a commercial quantity of methamphetamine. Before then, telephone service 0499 098 888 was connected in the name of Deyao Tong, with a date of birth 11 July 1991 and an address Unit 4/31-33 Dryden Street, Campsie in New South Wales. The offender used this phone in the course of his activities concerned with the importation of the border-controlled drug.

The offender's activities included accompanying a co-offender named Luo to the Auburn Post Office to take delivery of a parcel connected with the importation. He participated in conversations captured under authority of a warrant or warrants, revealing his role above that of Luo who provided the public face in the transactions in Australia for the delivery of the drug hidden in laminated timber furniture flat-packs. He arranged with Luo to take delivery of the consignment and provided him with a telephone and instructions for that purpose. He met and communicated with others apparently at a higher level in the group. When Luo was ultimately arrested he took steps to monitor and manage his progress through the criminal justice system, until he was arrested in turn.

The following are details of these activities in which the offender participated in the importation of the border-controlled drug:

About 1.20pm on 25 November 2013 Star Track Express attempted delivery of a speed post international mail item to Zhi Qian Chen of 13/8-10 Northumberland Road, Auburn. There was no-one home there to take delivery. A parcel collection slip was left in the mailbox, with advice that the item could be collected at the Auburn Post Office.

On 28 November 2013 a container arrived in Australia with a bill of lading describing the contents as "15 QTY of MDF TV cabinet/furniture", with consignee details of Zhi Qian Chen of 13/8-10 Northumberland Road, Auburn and a telephone number 0424 015 140. The consignor was Wang Wei of Shenzhen, China.

About 10.20am on Friday 29 November 2013 the offender and Zhu Luo, to whom I earlier referred, attended Auburn Post Office. Luo had a New South Wales driver's licence in the name of Zhi Qian Chen of the Northumberland Road address, with a date of birth 16 September 1958, and the parcel collection slip left by the Star Track Express courier. In the post office Luo and the offender separated and Luo approached the counter. He took possession of the parcel and signed the electronic receipt. Both left the post office and Luo handed the offender the parcel. They sat on a bench outside the post office where Luo handed the offender the licence and they then separated.

The investigation included surveillance and telephone interception of service 046 667668 used by Nicolas Yick, born 11 January 1959. About 4.19pm the offender used the telephone service in the name of Tong to call this number. The following conversation occurred: "The offender: Yes boss. Yick: Have you got the matter fixed?

The offender: Er no they haven't replied.

Yick: See what the situation is. There are many premises for lease on the newspaper, you follow that up.

The offender: In where?

Yick: The newspaper.

The offender: No, fuck, not of those.

Yick: Yes, they do, got it today, got this and that, you follow that up anyway, you know? S/he said s/he reply you today but haven't, it is so late?

The offender: No, will send email to me.

Yick: No, how much money s/he charges et cetera et cetera.

The offender: These figures are known but not when arrives at Customs...

Yick: Okay, that's fine.

The offender: (Ind)...

Yick: Today is Friday already.

The offender: Should arrive on Monday or Tuesday, that what s/he told me.

Yick: Okay you follow that up and ring me if anything."

About 1.20pm on Monday 2 December 2013 Yick called the offender and the following was said:

"Yick: What's the situation?

The offender: I have enquired with him and he said it will arrived within this week, before Friday.

Yick: How come it's late?

The offender: Has arrived on 28th or 29th and is required to warehoused it for seven days, perhaps the container is required to be allotted a warehouse or similar.

Yick: Which date can it come out?

The offender: Before Friday. He will ring me a day before it is coming out.

Yick: He didn't say anything else?

The offender: No, no, no.

Yick: That's fine, you follow up, see what the situation is okay?

The offender: One other thing is, he asked if there is a lift because when they have to move up...(interrupted)

Yick: Yeah, yeah, yeah, I want to ask you as well that if he will move those ten odd things for you? That can also be a problem.

The offender: He will, he will move them.

Yick: That that's fine.

The offender: It is included in the fee.

Yick: Yes but they were just unloaded on the floor, depending on the person.

The offender: Even if he don't move the, I can pay a hundred something to them there to move them.

Yick: That's okay, so if it in the next couple of days, I have to tell him what to do. You know how to organise that?

The offender: You tell him that on the other side told me before Friday.

Yick: Yeah, you see what the situation is.

The offender: To save trouble I can pay a hundred or something more.

Yick: The most important is to see there is no problem. Call me if there is anything, okay. Wait for my call."

About 9pm on Tuesday 3 December 2013 the offender spoke to Luo by phone, during which Luo asked for money to pay rent. Between 12.10am and 12.15am on Wednesday 4 December 2013 text messages were exchanged between them, discussing the payment of rent. About 3.25pm by telephone contact the offender and Luo arranged to meet in a coffee shop at Burwood.

About 3.27pm the offender walked from 26 Henley Road, Homebush West and drove to the vicinity of Burwood Plaza in a Mazda Tribute, registered

number AC 21 EA. About 3.46pm he communicated with telephone service 0452 186 339 advising that he was paying a penalty notice and he discussed having coffee. About 3.51pm he stood beside the Burwood Post Office.

About 1.36pm on Thursday 5 December 2013 the offender and Yick spoke via their respective telephone services. The following exchange occurred:

"The offender: How is thing, boss?

Yick: Haven't got up yet, boss?"

Subsequently in the same conversation:

"Yick: Nothing, m, were you, were you asked, mm, have you, have you been told what are the situations?

The offender: Yesterday, rang him/her, m, it is possibly, the quickest would be the, in the end of the week...

Yick: It's Thursday already.

The offender: I know. It, em, even if it goes in on Saturday, it can still come out.

Yick: No, did he/she say what had happened?

The offender: Did not say, just said that it is now, that it has been warehouse cleared, and said that it has to wait for inspection, something like that, how do I fuckin know?

Yick: Waiting for inspection?

The offender: That is, oh, not really, that is, it is now waiting for, after the warehouse clearance is completed, then would wait for the Customs to approve for the release. Now, it's waiting for the Customs to approve, to approve it to be released to come out. He/she just said this.

Yick: He/she didn't ring you?

The offender: He/she didn't ring, no.

The offender: I gave them a phone call to them around 3 o'clock yesterday, yesterday.

Yick: Eh, eh, perhaps you will see, today, eh, after you get up, what the situations are. See their side."

Later in the same exchange:

"Yick: I know. But I just want to find out if there is any news about what is happening.

The offender: Well, I already asked him/her yesterday but he/she said he/she also didn't know. Now, it's not to say whether knowing or not knowing, they said it's okay as it is just waiting for the Customs to release it and the, it is done he/she said. This is what they said.

Yick: Normally, it should be. Normally, if there is nothing wrong with the things, then all would have been released already. When did it arrive, the ship?"

Later in the same exchange:

"The offender: It arrived at the Customs on the 28th, but was said something like, that it had to go into somewhere for one week, to wait for a week, to wait, something, to wait for what fuckin vaginal stuff, I don't know. What is it called? He/she said one week, and then, normally, it would begin, begin, the Customs could prepare to let go, something like that.

Yick: Oh, arrived on the 28th, so, it should be, well, that is okay then, you'll see what the situations are, all right? And then, keep in touch again mm."

About 12.30pm in a telephone conversation the offender and Luo agreed to meet at a coffee shop in Burwood between 2.30pm and 3.30pm. The offender told Luo that he, "has got something for seeing you". About 1.40pm the Mazda used by the offender on 3 December 2013 was seen in a car park in Strathfield opposite a seafood restaurant.

About 1.55pm in a telephone call Luo told the offender he had just arrived. About 2.17pm the offender and Yick and a female walked from the vicinity of the restaurant and the offender and the female went to the motor vehicle and drove off. About 2.32pm the offender spoke to Luo by phone and told him he had arrived and would be where they had coffee.

Between 2.36pm and 3pm the offender and Luo met at a coffee shop in Burwood Plaza. The offender showed Luo the contents of a green and white envelope and handed him a Nokia phone, two $50 notes, and an A4 envelope. The offender called the phone he had given Luo, thereby to provide his number, and instructed Luo that the furniture would arrive the next day at two o'clock, that the delivery person would call him, that the delivery company numbers were in the phone, that they would call before two o'clock, that he should speak to the driver and pay him $100 for the delivery on Saturday, and after the delivery he should send the offender a text and he would come.

About 10.24pm on Friday 6 December 2013 the offender sent a text to Yick, "Boss, tomorrow you get the money ready, I shall give you a call as soon as it is fixed."

On Saturday 7 December 2013 Ruiheng Zhong, a self-employed delivery driver, collected two pallets of furniture from a company in Botany. Between 1.23pm and 2pm the offender exchanged text messages with Luo in which Luo addressed the offender, "Elder brother, I please ask." From the context this must have been a request by Luo to make enquiries of those responsible for the delivery of the consignment. The offender thereupon instructed Luo upon the telephone numbers to use to contact the freight company, those numbers being installed in the phone he had earlier provided to him. Luo contacted the freight company.

Between 3.05pm and 3.14pm the offender exchanged text messages with Luo, in which the offender enquired as to incoming calls and instructed him to contact as soon as there was one. At 3.35pm Luo received a call from the delivery driver and thereafter between 3.40pm and 3.47pm the offender exchanged text messages with Luo, who advised that he had received the call and that the delivery would arrive at 4.30pm. The offender said he would be late, that he had arranged to meet someone at five o'clock, who he had told to bring "something edible". Luo asked would there be some for him. The conversation continued:

"The offender: I bring samples to show people. If there is more I give some to you.

Luo: I also want sample, ha, thank you.

The offender: After about one more week later, there will be good rice to eat."

Between 3.57pm and 4.47pm the offender exchanged text messages with Luo and Yick, in which the offender arranged to meet with Yick, to whom he referred as "Boss". Yick enquired as to the environment, the surroundings, and Luo informed the offender the consignment was on the road. Luo also wrote to the offender, "Can get some that is edible? Otherwise, not able to pay the rent, I have put it off 'til the day after tomorrow."

About 4.52pm the consignment was delivered to the consignment addressee, Zhi Qian Chen, at 13/8-10 Northumberland Road, Auburn. When taking delivery Luo identified himself as Chen. No other inference is available from the facts presented.

Between 4.55pm and 6.06pm the offender exchanged text messages with Luo and Yick regarding the completed delivery of 46 pieces, which Luo must count, and the offender meeting with Yick at Burwood. Luo asked when the offender would attend him, repeated in further communications between 7.36pm and 10.20pm.

These communications are consistent with the proposition that the offender was answerable to Yick and was directing Luo.

Neither the offender nor Yick attended Luo before about 1.21am on Sunday 8 December 2013, when police went to the Northumberland Road address and found 46 flat-pack furniture boxes. Luo was there arrested and the consignment seized.

X-ray examination revealed anomalies in three of the flat-packs. One of them was examined and found to contain a white substance between laminated wood. Presumptive testing revealed the characteristics of methamphetamine. The three packs containing approximately 20 kilograms of a substance. Further examination revealed that in each pack there was 11 kilograms of the substance.

In the total bulk there was 8.146 kilograms of pure methamphetamine. This is almost 11 times the commercial quantity of 0.75 kilograms and 4,073 times the marketable quantity of 2 grams specified for this drug in schedule 4 of the Criminal Code Regulation 2002.

Luo was arrested in possession of a licence in the consignee name Zhi Qian Chen and the Northumberland Road address and two mobile phones with SIM cards. One for the service used in the aforementioned communications and the other by means of which Luo was contacted by or contacted the freight company.

When interviewed Luo admitted that he was living at the address in Northumberland Road which he arranged to rent in conjunction with a man named Frank whom he had met through a mutual friend. He claimed that Frank told him he could get cheap furniture from China with which to furnish the apartment and gave him a mobile phone to be used to make and receive calls regarding the furniture delivery. His admissions extended across the arrangements with Frank and the role Luo played including that he paid for the furniture upon delivery and that he had never slept at the Northumberland Road unit, but he denied knowledge of the drugs within the furniture. The licence in the name Zhi Qian Chen seized from Luo was a false document.

On Sunday 8 December 2013 federal agents executed a search warrant of the Northumberland Road premises where they found a delivery note for the 46 cartons of furniture, the international mail item acquired from Auburn Post Office, and a red Nike polo shirt. Between 3.14pm that day and 9.36am on Monday 9 December 2013 the offender attempted to contact Luo by phone on five occasions.

About 12.36am on Tuesday 10 December 2013 he called Yick and disclosed there was a problem, discouraged Yick from his expressed "need to buy things" and arranged to meet with him the following day when they could talk. About 12.42am the offender sent a text to Yick who agreed that the offender would "need to go there and have a look". About 4.15pm the offender called Yick and told him not to call that number and that he would call him on another phone shortly. He repeated this warning and a message sent at 6.18pm.

About 1.25pm on Friday 13 December 2013 the offender called an unknown female person and discussed another person attending the premises in Auburn. He told her he still did not have "the stuff'. About 2.09pm on Saturday 14 December 2013 the offender called a man named Jacky Lai and spoke to him in coded language. The effect of the conversation is that the items had gone into the apartment but that there was a problem, that Luo had disappeared the last two days, and that the offender dared not go up into the apartment.

About 8.34pm on Tuesday 17 December 2013 the offender was called by an unknown male addressed as Chau who could see lights in the apartment.

The offender said he had told someone to go up there and that he would keep ringing. About 8.35pm the offender called another unknown male instructing him that he could go to the apartment immediately and have a look for him.

On Wednesday 18 December 2013 federal agents observed the offender meeting Yick about 5.04 pm. They were joined by Luo about 5.25 pm. About 5.26 pm Luo walked away to another location within Burwood Plaza and Yick and the offender walked off out of sight on to Railway Parade. About 5.31 pm Yick entered Burwood Plaza and walked toward Luo before veering away to walk out of sight. The offender joined Luo. About 5.33 pm Yick joined the offender and Luo and about the same time the offender and Luo stood and walked a short distance apparently examining a document, and between 5.36 pm and 5.45 pm the offender and Luo sat at a coffee shop outdoor table and appeared to speak whilst examining a document.

About 5.46 pm the offender called Yick and told him he wanted to talk and to get something from him. At 5.48 pm federal agents observed Yick meet Luo and the offender at the coffee shop. Yick and the offender stood and walked into Burwood Plaza out of sight leaving Luo at the table. The offender returned to Luo whilst apparently speaking on the phone and about 5.55 pm Luo and the offender stood and walked along Railway Parade. About 5.57 pm an unknown female called the offender; he told her he had just had a meeting with Big Built. The temporal proximity of this call to the meeting with Yick suggests that this was a reference to him. The conversation is important in light of the submissions made on the offender's behalf regarding the level of his involvement in this significant importation of border-control drugs. The conversation continued:

"Unknown Female: Oh, so, you, hmmm, will you come or not?

The Offender: I can't. I can't at this time. I have now got someone to have - to dig up that fucking bastard, do you understand?

Unknown Female: Oh, oh, oh, oh.

The Offender: Has dug up, and I now seizing, I am fucking seizing him/her Honour.

Unknown Female: Oh.

The Offender: I am fucking seizing, I want, and, and I have already said to Big Built just now, now I have found and seized the person.

Unknown Female: Oh.

The Offender: And also, by chance and coincidence, I have and seized the person. For him/her Honour he had really been caught by the cops.

Unknown Female: Wasn't he?

The Offender: Yes.

Unknown Female: So, what happened?

The Offender: He, he is required to go to court tomorrow.

Unknown Female: Oh.

The Offender: But, Big Built and the others still don't believe, do you understand? It's because even with the writing of the paper, yet, still don't believe. So, I don't care if he/they believe or not, I will just hand over the person to you. I am just following him. I said, 'Well you just give a call to your boss'. I said 'If you don't believe me, I am giving the person to you for you to handle, so, I am clean from this.' Is that right, first of all?

Unknown Female: That is right, so, it is okay now, otherwise, you will get...

The Offender: Get in full trouble.

Unknown Female: ...to get into full trouble. That's right.

The Offender: I have found him, I have found the person. However you like to hand him, you just do it. You believe him, or you don't believe him, you just sort out yourself, is that right?

Unknown Female: Eh. Eh, eh, eh, correct, correct, it is.

The Offender: Therefore, I am now seizing the person all along. Anyway until he goes to court tomorrow, I will still get someone to follow him to go to court, or whatever needs to be done, we'll just keep hanging on him until he...

Unknown Female: You may just pass the bucket to Big Built, for getting people to grab hold of him.

The Offender: I have now already shared it to Big Built."

Later in the same conversation:

"The Offender: You listen to me, they said something like that, was because in the beginning, they had suspicion on me, that is, I had overtaken his share behind his back. But for us, for us to come out to do things, you say, will we do this, about things? Is that right, first of all? You think, you think we will risk our life for fun?"

Later in the same conversation:

"Unknown Female: That is, the meaning is, that, what, asked me if I would help you. I said, I, I, of course, have to know more about the situations before saying 'help' or 'not help'. If there is 'reason', then, will help the 'reason' right?

The Offender: He/she said, that is, felt that I was conspired to it. That is, had a feeling that I was part of it. But, now, the person was really caught by the cops, and there is a warrant. But he/she would, well, of course, he/she would not use his/her real name, but false name, is that right? And the address was not written to be there. When the cops caught him/her, there was also a set of that document.

Unknown Female: No, when he/she was caught, was it red-handed, first of all?

The Offender: Those stuff was there, but he/she insisted not admitting, that is to say, but, later, he followed to say, it was some time after 2 o'clock, the Australian Federal cops went up there.

Unknown Female: The, it's impossible.

The Offender: Well, for me, whether it's possible or impossible, now, I have seized the person here with me, will pass to them and let them handle it."

Further observations by federal agents on 18 December 2013 were of the offender using a mobile phone and walking with Luo about 6 pm in Burwood until they entered the Mazda motor vehicle used by the offender about 6.15pm.

This was when the conversation with the unknown female quoted above was captured.

Upon what was said there were at this point concerns the offender held regarding Luo and his arrest, and that he would leave Luo to those to whom he answered to be dealt with as they thought fit. It is difficult to conclude whether it was thought that Luo might have acted dishonestly toward the offender and his accomplices, or might be a risk to them after his arrest and the involvement of the Australian Federal police, but either way, upon these representations one might infer that Luo was expendable to the offender. However, as noted, the conversation was captured when the offender and Luo were together and immediately before they were arrested together at 6.17 pm.

In addition to the captured calls between the unknown female and the offender and the surveillance of Luo and the offender, there is surveillance device product captured between 5.25 pm and 6.15 pm with conversation between the offender, Luo, and an unknown male. The information gleaned from the surveillance device includes representations from the offender consistent with his apparent confusion when he could not locate Lou after he was arrested, the charging of Luo, a request made of Luo for a copy of his court documents, his response to the request in terms questioning whether or not he was trusted, and the reply by the offender insisting that he have a copy of the document so that he could pass them on to his "elder brother" to send "over there". They discussed that Luo was charged only in respect of a false licence and not the product, against the possibility that what the police found were quantities of fake product placed to see what the situation was, which I take to be a reference to counter surveillance or such like to ensure that the participants in the enterprise were not under suspicion.

The offender pressed for the papers and said he would accompany Lou to Court. They discussed arrangements for a lawyer and in the course of these discussions the offender said to Lou:

"Welcome, I now say this to you. Now, there's the person who is behind me; and behind him/her, there are also Vietnamese and others. He/she now has told me to follow you, not to let you, he/she has asked you to live with me together tonight. Do you understand? That is, today, tonight, you come with me to the Mahjong house and tomorrow, for the court hearing, have somebody to go with you."

Lou expressed fear, there was discussion about purchasing a SIM card, the

offender asked him whether he was followed.

The offender was arrested at 6.17 pm on Wednesday 18 December 2013. He identified himself as Wei Liu. He had in his possession a licence in that name with date of birth 28 May 1970. His actual date of birth was 11 April 1972. The address on the licence was unit 25/38-40 Archer Street Chatswood.

The licence number was not valid. The card number on the licence was issued to another person and bore no relationship to the name on the licence. There is no other record of any such person. He had a Medicare card in that name with an invalid number.

He participated in an interview and maintained that he was Wei Lieu. He could not remember his date of birth and had no permanent residential .address. He admitted that he had no current visa, that he arrived here in 2003 or 2005, and said that he worked as a fitter, decorator, and architect for houses. He could not name his employer and said he had friend who could get licences from whom he obtained the one in his possession but could not remember the friend's name. He used the licence for five years and produced it to police on one occasion.

The Mazda motor vehicle was searched under the authority of a warrant on 19 December 2013. Located were a Nokia mobile phone with a Vodafone SIM card, a Huawei mobile phone; a small clip-seal bag containing crystalline rock substance, and a Lycamobile SIM card.

On 20 December 2013 a search warrant was executed at what was thought to be the offender's home in Homebush West and receipts from a money remittance service provider in the name of Wei Liu dated 20 September 2013 for $480 and $2,980 respectively was seized with paper containing handwritten numbers. These are included in the material relevant to the second offence upon which I am to impose sentence.

On 29 January 2014 officers from the Department of Immigration and Border Protection interviewed the offender and ascertained his identity to be Jinde Huang, born 11 April 1972, and his arrival in Australia to have been on 17 September 2005 after which he remained.

DEALING WITH THE PROCEEDS OF CRIME

A driver's licence in the name of Wei Liu seized from the offender was used to facilitate international money transfers in that name from Sydney-based service providers, one of which was Superforex Finance Group Pty Limited, the name appearing on the receipts found in what was believe to be the offender's home. Others were Asia Pacific International Group Pty Limited, Sun Capital Pty Limited, Discount Air Travel using Western Union, DS Finance Group Pty Limited and Mid Campsie Newsagency also using Western Union.

Between 21 May 2012 and 15 November 2013, the offender transferred $1,864,943.80 to accounts in China in the following transactions.

Money transmitted via Superforex Financial Pty Limited was preceded by the offender's membership application in the name of Wei Liu and particulars of date of birth and address appearing on his false licence. He provided a mobile phone number that was subscribed in the name of Jack Martin of Nords Wharf. That person cannot be located. He produced the licence and the Medicare card as evidence of identity. He engaged upon the following transactions:

On 19 November 2012 two sums of $100,000 and $103,000 respectively;

On 20 September 2013, two sums of $1,980 and $480 respectively;

On 15 November 2013, $280.

Money transmitted via DS Finance Group Pty Limited was preceded by the offender's customer registration with the name and information as before, supported by the licence. He engaged upon the following transactions:

On 24 October 2012 $71,667;

On 8 November 2012, $90,000;

On 21 December 2012, $89,967.80;

On 21 January 2013, $70,000.

The money transmitted via Sun Capital Pty Limited Discount Air Travel using Western Union was preceded by the offender's customer registration with the name and information as before supported by the licence and Medicare card.

He engaged upon the following transactions:

On 19 September 2012 two sums each in the amount of $50,396;

On 24 September 2012 two sums each in the amount of $152,005;

On 25 September 2012 three sums, two of $45,871 each and the third of $110,620;

On 8 October 2012 $153,457;

On 9 October 2012, $50,000;

On 15 October 2012, $99,375.

The money transmitted via Asia Pacific International Group Pty Limited was preceded by the offender's customer registration with the name and information as before supported by the licence. He engaged upon the following transactions:

On 21 May 2012, $2,000;

On 13 July 2012, $2,000;

On 20 July 2012, $14,000;

On 24 October 2012, $75,000;

On 8 November 2012, $75,000;

On 9 November 2012, $55,336;

On 10 December 2012, $109,237;

On 21 December 2012, $75,000;

On 24 December 2012, $20,000;

The statement of facts provides particulars of 27 transactions in all between 21 May 2010 and 15 November 2013.

In 2012 these were on 21 May one; 13 July one; 21 July, one; 19 September, two; 24 September, two; 25 September, three; 8 October, one; 9 October, one; 15 October, one; 24 October, two; 8 November, two; 9 November, one; 19 November, two; 10 December, one; 21 December, two; 24 December, one.

In 2013, on 21 January, one; 20 September, two; 15 November, one; There was nothing said in the statement of facts as to the reasons for these transfers notwithstanding the temporal connection between them and the period in which the importation offence was committed.

By his plea of guilty the offender admits the essential elements of the offence including that it was reasonable to suspect that such money was the proceeds of crime. As matters stand I am left to speculate as to the crime or crimes which might be suspected to be the source of the money, regardless of the suspicion that I have arising from the significance of the role the offender played in the importation offence.”

The findings of the sentencing judge

34. In respect of the offending contrary to s 307.1 of the Code, the sentencing judge found (at ROS 27) that the role performed by the applicant included:

1. arranging for the premises to which the drugs would be delivered;

2. engaging another person to take delivery of the drugs;

3. providing that person with direction;

4. giving that person money and telephones for use in the enterprise;

5. giving instructions as to enquiries to be made about the arrival of the drugs; and

6. directing surveillance of the premises when concerns arose about the delivery which had been arranged.

35. His Honour found (at ROS 27) that although the applicant reported to others, his role was nevertheless a managerial one, and was carried out at a level which he described as “perhaps not quite to mid-level but a management role nevertheless with authority to attend to critical arrangements and instruct others in the execution of the enterprise”. His Honour concluded (at ROS 28) that the enterprise was a “highly organised criminal activity” and that although the quantity of the drug was not determinative of the applicant’s criminality, it was nevertheless significant. He also concluded (at ROS 29) that the applicant was engaged in the offending for financial reward. His Honour did not accept that in offending as he did, the applicant was solely concerned with the discharge of gambling debts. He concluded that even if that this had been the case it would not have been a factor in mitigation.

36. In respect of the offending contrary to s 400.9 of the Code, his Honour found (at ROS 28) that the amount of money which had been remitted to China reflected the extent to which the applicant was trusted by those with whom he was working.

37. None of his Honour’s findings as to the applicant’s role in the commission of the offences were challenged before this Court.

The applicant’s subjective case

38. A report of Dr Katie Seidler, Clinical and Forensic Psychologist, was tendered in the applicant’s case on sentence. On the basis of the history provided to her, Dr Seidler reported that the applicant was born and raised in Guangzhou in southern China, and was the elder of two sons. He had a stable and supportive childhood environment and was not exposed to any notable developmental risks. Dr Seidler reported that the applicant completed his secondary education to an above average standard, and thereafter completed a course in internal refurbishment at a Technical College. The applicant admitted to Dr Seidler that since arriving in Australia he had been working illegally to support himself. He also told her that he had a history of problem gambling which he said commenced when he was in China, and which worsened considerably when he came to Australia.

39. In terms of the offending, the applicant told Dr Seidler that he met his co-offenders and their criminal associates at a casino and that over time, against a background of increasing personal debt, he was offered money to become involved “in certain jobs on their behalf”. He told Dr Seidler that the offences to which he had pleaded guilty represented some of those “jobs” and that “apparently this was the first time that drugs had been involved”. He said that he did not initially realise that illicit drugs were involved although he soon became suspicious and frightened, and concerned about the possible consequences for himself.

40. The sentencing judge concluded (at ROS 25) that in the absence of sworn evidence from the applicant to support the various statements recorded by Dr Seidler, her report did little to advance his case, and that there was an absence of any direct explanation from the applicant as to why he had engaged in the offending. In particular, his Honour said:

“I am left to speculate upon how reliable the offender’s representations might be in the absence of evidence from him or material to corroborate the explanations offered and the extent to which his circumstances and personality might have in fact attributed (sic) to the conduct with which he was charged. Merely to say that he has accumulated gambling debts being in mind that at least some of this activity is said to have been in a casino setting where one might expect there to be the opportunity to source a record of gambling activity, without particulars of when he began to incur the debts, the pace at which they were accumulated and the creditor/creditors to whom the money was owed, does not assist the offender in the discharge of his burden of proof even on the balance of probabilities. I do not accept the propositions advanced in the passage quoted above that the offender was surprised to find that drugs were involved or that he became suspicious and consequently frightened. I do not accept that he was naïve as suggested in the formulation offered by the psychologist. These suggestions are inconsistent with the facts that I have rehearsed, the communications between the offender (and co-offenders) and the extent of the offender’s participation in the sophisticated importation.”

41. His Honour found (at ROS 30) that there was no evidence of any genuine remorse on the part of the applicant, other than his pleas of guilty. He also found that other than what was contained in the report of Dr Seidler, there was no evidence as to the applicant’s prospects of rehabilitation.

GROUNDS OF APPEAL

Ground 1 - The learned sentencing judge erred in his assessment of the significance of the applicant’s pleas of guilty and the discounts allowed by:

failing to take into account the utilitarian value of the plea;

finding the discounts allowed for the pleas of guilty should be relatively modest because the applicant’s decision to plead was a recognition of the inevitable in light of the strong Crown case;

finding that the pleas of guilty involved only a modest facility to the judicial process, warranting, for the s 307.1(1) offence a discount of between 10% and 15% and for the s 400.9 offence a discount of between 5% and 10%.

The findings of the sentencing judge

42. In terms of the applicant’s pleas of guilty, and specifically in respect of the timing of those pleas, the sentencing judge said the following (commencing at ROS 2):

“The offender was arrested and charged on 18 December 2013. On 26 November 2014 he pleaded guilty in the Local Court to the offence of import a border controlled drug. The trial was listed to commence on 17 August 2015 for the offence of dealing with proceeds of crime but on 14 August 2015 he pleaded guilty to that charge.

The Crown submits that the offender did not plead guilty at the first reasonable opportunity in either case, and in light of the strong Crown case that he faced, his decision to take this course must be seen to be his recognition of the evitable, whereupon the discount to which the offender might aspire is mitigated to a significant extent.

The history of the proceedings, the facts upon which the prosecutions were brought, and the evidence that the Crown had to present should the offender have chosen to proceed to trial, which I shall discuss when dealing with the facts, together provide a cogent basis for the Crown submissions. I agree that the discount to which he is entitled by taking the course he has, though he does to an extent facilitate the course of justice, should be relatively modest.

I propose to discount the sentence that might otherwise have been imposed for the offence involving the transmission of the money to China. I intend to allow a discount of between 5% and 10%.

For the offence of importing the border controlled drug I propose to allow a discount of between 10% and 15%. I shall explain in greater detail how I have come to these percentages later in the judgment.”

43. Although his Honour indicated that he would further explain the path of reasoning that he had adopted in order to arrive at the specified discounts, he said only this (at ROS 30):

“In the circumstances and for these reasons I intend to allow a discount to the sentence that would otherwise be imposed upon the importation offence of between 10% and 15%. For the offence involving the transmission of money to China, I intend to allow discount of between 5% and 10%. I have adopted this range to achieve sentences reflected in years or years and months abandoning any extra weeks or days that might follow upon a strict application of a specific percentage respectively.”

Consideration

44. The present application for leave to appeal was heard at the same time as Xiao v R [2018] NSWCCA 4 (“Xiao”), in which this Court considered whether, in sentencing a federal offender, it is relevant for a sentencing judge to take into account the utilitarian benefit of a plea of guilty. The Court concluded (at [278]) that in sentence proceedings governed by s 16A of the Crimes Act 1914 (Cth) (“the Act”), a sentencing judge is entitled to take such utilitarian benefit into account. The Court concluded (at [281]) that the sentencing judge in that case had erred in failing to do so.

45. The observations of the sentencing judge in the present case regarding the timing of the applicant’s pleas of guilty, and the discounts to be applied, are set out at [42]-[43] above. His Honour concluded that although the applicant’s pleas demonstrated a willingness to facilitate the course of justice, any discount should be “relatively modest”.

46. His Honour did not refer to the utilitarian value of those pleas. In my view, the only available conclusion is that his Honour failed to have regard to that factor. In doing so, his Honour fell into a similar error as that found by this Court in Xiao. It follows that ground 1 is made out.

47. Error having been found, the applicant must now be resentenced. It is therefore strictly unnecessary to consider grounds 2 and 3, the latter of which asserts that sentences imposed were manifestly excessive. However it is appropriate to consider ground 2 which raises a discreet issue.

Ground 2 – The learned sentencing judge erred in specifying a range between which the discount for the plea of guilty fell

48. As set out at [42]-[43] above, the sentencing judge indicated an intention to allow a discount of “between 5% and 10%” in respect of the sentence to be imposed for the offence contrary to s 409.1 of the Code, and a discount of “between 10% and 15%”.

49. In Xiao, this Court observed (at [280]) that s 16A(2)(g) of the Act neither requires nor prohibits the specification of a discount. It was also observed that whilst there is no obligation upon a sentencing judge to so specify, and whilst a failure to do so will not of itself amount to error, it is desirable, in the interests of transparency, that any discount applied be specified.

50. In R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 the sentencing judge had concluded that the respondents were entitled to a discount for the utilitarian value of their respective pleas of “something in the vicinity of 10 to 15 percent”. Howie J (with whom McClellan CJ at CL and Hidden J agreed) said at [38]:

“Although the Crown made no complaint about this part of the sentencing remarks, it must be observed that it is inappropriate for a judge to identify a discount as falling within some vague undefined range. A judge is not required to indicate the discount being given, although this Court has frequently urged judges to do so. But if a judge is minded to indicate the discount in percentage terms, there must be certainty as to what it is. If a judge does not indicate the exact quantum of the discount, then neither the offender nor this Court can have confidence that it was applied so as to result in some appreciable difference to the sentence that would otherwise have been imposed. It is impossible to understand how a vague, undetermined discount can be applied to a notional starting sentence in order to derive the ultimate sentence to be passed. In this case it is not obvious from the sentences imposed on either respondent that a discount of “something in the vicinity of 10 to 15 per cent” has been applied. In any event there was no justification in this case for a discount over 10 per cent for a plea made after the date set down for trial.”

51. In R v Burton [2008] NSWCCA 128 the sentencing judge had expressed the discount for the respondent’s pleas of guilty as “something in the range of perhaps 15% or a little higher”. Johnson J (with whom Campbell JA and Grove J agreed) applied (at [121]) the observations of Howie J in Knight. Both of these authorities were relied upon by senior counsel for the applicant in the present case in support of ground 2.

52. The Crown submitted that whilst it was “preferable” that any discount be expressed “with as much certainty as is possible”, a failure to do so did not necessarily lead to a conclusion that error was made out. In support of that proposition, the Crown’s written submissions cited two authorities.

53. The first was Ayache v R [2013] NSWCCA 41 where the sentencing judge recorded that he had reduced the applicant’s sentence “by about 25%”. Rothman J (with whom McClellan CJ at CL and Adamson J agreed) rejected a submission that the use of that expression by the sentencing judge amounted to error. His Honour expressed the view (commencing at [14]) that in light of the fact that sentencing is a process of intuitive synthesis and not a mathematical exercise, the proposition that there must be mathematical precision of the kind for which the applicant in that case had contended could not be supported. It is apparent the Court was not referred to the decisions in Knight or Burton.

54. The second authority relied upon by the Crown was JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528. In that case the sentencing judge had concluded that the discount should “sit somewhere between ten and fifteen percent…” R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) rejected the proposition that the sentencing judge had erred by failing to precisely state the amount of the discount that he had applied. His Honour concluded (at [61]) that the sentencing judge was not required quantify, with absolute precision, the extent of the discount allowed, and cited the decision in Ayache as authority for that proposition. Again, it is apparent that the Court was not taken to the earlier decisions in Knight and Burton.

55. The law strongly favours transparency in the sentencing process: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ. In terms of the specification of a discount to reflect the utilitarian value of a plea of guilty, such transparency is, in my view, best achieved by precision in the expression of the discount. As Howie J pointed out in Knight, expressing a discount in other than precise terms, and in terms of a range, has the capacity to place this Court in some difficulty in determining whether, in a particular case, a discount was applied at all.

56. The sentencing judge in the present case did not specify, in respect of either offence, the starting point which he had adopted, nor did he state, other than in terms of a range, the respective discount that he applied. As the written submissions of the applicant point out, this is of particular significance in the case of the sentence imposed for the offence contrary to s 307.1(1) of the Code. Depending upon whether the discount applied was 10% or 15% (or perhaps somewhere in between) the starting point was between 16 years and 8 months and approximately 17 years and 8 months. The significant difference in that range will be self-evident.

57. The circumstances of the present case may be distinguished from those in Ayache. It was accepted by both parties in that case that the applicant had entered his plea of guilty at the earliest opportunity. That fact was expressly acknowledged by the sentencing judge. In these circumstances Rothman J took the view that there was nothing to suggest that the discount applied was less than 25%. In the present case, where the sentencing judge may have started, and what discount he actually applied, remain obscure.

58. Similarly in JM, the circumstances were such that counsel for the applicant on sentence had accepted that the discount would be in a certain range. R A Hulme J held there could be no legitimate complaint by the applicant about not being afforded a discount of greater than 10%, given the time at which his plea was entered.

59. In my view the lack of precision in the specification of the discounts in the present case necessarily leads to the conclusion that this ground is made out. Sentencing judges should, in my view, express discounts with precision so as to overcome uncertainty of the kind which has arisen in the present case.

60. For all of these reasons in my view, ground 2 is made out.

Re-sentence

61. As error has been found, this Court must determine an appropriate sentence in the independent exercise of its discretion: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [43]. In doing so, the Act mandates that to the extent that they are applicable, the factors in ss 16A(2)(a)-(p) are to be taken into account.

62. The written submissions filed on behalf of the applicant relied upon the sentences imposed in a large number of cases in which various offenders had been sentenced for similar offending and had been sentenced to a term or terms of imprisonment less than the total sentence imposed on the applicant. I have had regard to those cases although it is necessary to bear in mind that sentencing requires consistency in the application of principle, as opposed to numerical equivalence: Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [48]-[50].

63. The nature and circumstances of the applicant’s offending, as determined by the sentencing judge in respect of each offence, have already been set out: s 16A(2)(a). As previously noted, no challenge was made to any of his Honour’s factual findings. The offending contrary to s 400.9 of the Code involved the applicant transferring a total of more than $1.8 million to persons in China over a period of approximately 18 months. As the sentencing judge pointed out, there is no evidence which enables any determination to be made as to the nature of the crime(s) of which those amounts transferred were the proceeds. Notwithstanding that, it remains the case that the amount of money transferred, and the extended period over which such transfers took place, render the offending serious.

64. Likewise, the seriousness of the offending contrary to s 307.1(1) of the Code is self-evident. The applicant occupied a managerial role in an enterprise centering upon the importation of a quantity of a prohibited drug which was substantially in excess of the prescribed commercial quantity. The seriousness of that offending can be gauged by the fact that the Parliament has seen fit to impose a maximum sentence of life imprisonment.

65. In the case of each offence, general deterrence is an important consideration on sentence: s 16A(2)(ja).

66. The reason(s) for the applicant’s offending remain largely unexplained. Like the sentencing judge, in the absence of evidence from the applicant I regard the report of Dr Seidler as being of limited value in terms of any assessment of the circumstances of the applicant’s offending, or his subjective case. This Court has repeatedly expressed the view that a cautious approach must be taken in assessing the reliability of statements of the kind contained in Dr Seidler’s report: see R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] per Smart AJ (Spigelman CJ and Simpson J (as her Honour then was) agreeing); Hall v R [2017] NSWCCA 260 at [48] per Wilson J (Payne JA and McCallum J agreeing).

67. There is no dispute that the applicant is a person of prior good character. Dr Seidler’s report did not diagnose any relevant medical condition: s 16A(2)(m).

68. As noted at [41] above, the sentencing judge was unable to make any determination as to the applicant’s prospects of rehabilitation. In the event that this Court came to re-sentence, the applicant relies upon his affidavit of 11 July 2017, as well as that of his solicitor, Bryan Dowe, of 10 July 2017. That evidence establishes that the applicant has been gainfully employed in custody and has undertaken courses in English and food handling. The case notes annexed to the affidavit of Mr Dowe speak in positive terms of the applicant’s skills, initiative and level of responsibility. Generally speaking, he appears to be using his time in custody productively, and in a way which points positively towards his rehabilitation: s 16A(2)(n) That said, and but for his pleas of guilty to each offence, there is no evidence of contrition: s 16A(2)(f).

69. In terms of the pleas of guilty (s 16A(2)(g)), the applicant was arrested on 18 December 2013. On 26 November 2014 he pleaded guilty to the offence contrary to s 307.1(1) of the Code and was committed to the District Court for sentence. The Crown’s written submissions before this Court acknowledged that there is no evidence as to why the proceedings remained in the Local Court for such a long period of time. It was accepted by the Crown before the sentencing judge that the brief of evidence was not served until 9 July 2014. Although the plea of guilty to that offence was not entered at the first available opportunity, it was certainly entered at an early stage, and at a time when the matter was still before the Local Court. The timing of the plea, to a large extent, determines the level of the discount to be applied: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160]. In terms of this offence I would start with a sentence of 16 years and 4 months imprisonment, to which I would apply a discount of 20% to recognise the utilitarian value of the applicant’s plea of guilty.

70. The position with respect to the plea of guilty which was entered to the offence contrary to s 400.9(1) of the Code is somewhat different. For a long period of time, the applicant maintained a plea of not guilty and was committed to the District Court for trial. His plea of guilty was entered effectively one business day before the commencement of that trial. In terms of this offence, I would start with a sentence of 1 year and 8 months, to which I would apply a discount of 10% to reflect the utilitarian value of the applicant’s plea of guilty.

71. There should be some small degree of accumulation between the two sentences, to reflect the fact that the offending was separate.

ORDERS

72. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal allowed.

3. Sentences imposed in the District Court of NSW on 29 March 2016 quashed.

4. In lieu thereof:

1. In respect of the offence contrary to s 400.9(1) of the Criminal Code 1995 (Cth) the applicant is sentenced to imprisonment for a period of 1 year and 6 months commencing on 18 December 2013 and expiring on 17 June 2015.

2. In respect of the offence contrary to s 307.1(1) of the Criminal Code 1995 (Cth) the applicant is sentenced to imprisonment for a period of 13 years commencing on 18 June 2014 and expiring on 17 June 2027.

3. The total term of imprisonment is one of 13 years and 6 months, commencing on 18 December 2013 and expiring on 17 June 2027.

4. I specify a single non-parole period of 8 years and 6 months imprisonment commencing on 18 December 2013 and expiring on 17 June 2022.

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Decision last updated: 26 April 2018