Kao v R

[2020] NSWCCA 38

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kao v R [2020] NSWCCA 38
Hearing dates:	2 March 2020
Decision date:	13 March 2020
Before:	McCallum JA at [1]; R A Hulme at [2]; Button J at [3]
Decision:	(1) Extension of time to apply for leave to appeal granted. (2) Leave to appeal granted and appeal allowed. (3) The sentence imposed by Judge Craigie SC on 21 July 2017 is quashed. (4) The applicant, Tsai-Tong Kao, is sentenced to imprisonment for seven and a half years, to date from 9 July 2015 and to expire on 8 January 2023, with a non-parole period of four years eight months, that expired on 8 March 2020.
Catchwords:	CRIMINAL LAW – appeal against sentence – importing a commercial quantity of a border controlled drug – utilitarian value of plea of guilty for Commonwealth offence – “Xiao error” established – mitigatory duress - lesser sentence warranted – applicant resentenced
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code 1995 (Cth)
Cases Cited:	Diaz v R [2019] NSWCCA 216 Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category:	Principal judgment
Parties:	T Kao (Applicant) Regina (Respondent)
Representation:	Counsel: R Wilson SC (Applicant) K Ginges (Respondent)   Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2015/201775
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 21 July 2017 Before: Craigie SC DCJ File Number(s): 2015/201775

Judgment

1. McCALLUM JA: I agree with Button J.

2. R A HULME J: I agree with Button J.

3. BUTTON J:

Introduction

4. Ms Tsai-Tong Kao (the applicant) was sentenced on 21 July 2017 by his Honour Judge Craigie SC for an offence to which she had pleaded guilty in the Local Court. It was that, between 28 March and 9 July 2015, she had imported a commercial quantity of the border controlled drug heroin. That offence, contrary to s 307.1 of the Criminal Code 1995 (Cth), carries a maximum penalty of imprisonment for life, and a very large fine.

5. In accordance with the understanding of sentencing for Commonwealth matters that prevailed at the time, the learned sentencing judge did not provide a discount for the utilitarian value of that plea of guilty. Instead, again in accordance with the then-understanding, his Honour said the following:

I am satisfied that the offender is genuinely contrite and that she has pleaded guilty at the earliest opportunity in the Local Court, providing of itself some evidence of remorse and an acceptance of responsibility for her offending, together with a willingness to facilitate the course of justice.

I have considered those matters alongside the undoubted strength of an overwhelming Crown case; however, she will be given the full benefit of those matters associated with her early plea. Specifically in relation to the offender's willingness to facilitate the course of justice, she will be afforded a reduction of 25% in any otherwise appropriate sentence. (ROS p26)

6. In the event, the sentencing judge imposed a head sentence of imprisonment for eight years to date from 9 July 2015 and expire on 8 July 2023, with a non-parole period of five years, to expire on 8 July 2020.

7. The applicant has sought leave to appeal against that sentence. In short, relying upon the decisions of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and Diaz v R [2019] NSWCCA 216, her submission is that, with the benefit of hindsight, the approach of the sentencing judge can be seen to be an error, and furthermore it is an error that calls for resentence pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW). She also seeks leave to appeal out of time, on the simple basis that the error and its remedy did not become apparent until the judgments in Xiao v R and Diaz v R were delivered on 5 February 2018 and 13 September 2019 respectively.

8. The Crown in this Court did not resist any of those propositions. In particular, no effort was made to impugn the approach taken in Diaz v R. It was said, however, that, exercising the sentencing discretion afresh, this Court would come to the view that no lesser sentence is warranted in law.

9. In my opinion, the joint position of the parties is correct: the sentencing judge provided a discount for the willingness of the applicant to facilitate the course of justice, not for the utilitarian value of her plea of guilty. And although on a superficial analysis one might say that she received “the right discount for the wrong reason”, Diaz v R is authority for the proposition that this is not the kind of error that does not require consideration of resentence; in other words, it does so require. As well as that, responsibility for the delay in bringing forward the appeal cannot be laid at the feet of the applicant or her legal advisors; it is merely an effect of the incremental development of the criminal law.

10. Because all of that is straightforward, I turn immediately to resentence, and resolution of the real dispute between the parties.

Resentence

Submissions of applicant

11. The following conspectus of findings of fact made about objective and subjective matters is derived from the written submissions for the applicant in this Court, themselves based on findings in the remarks on sentence, none of which were placed in dispute by the Crown in this Court.

12. The applicant, a woman now aged 31 years, is a citizen of Taiwan, and was residing there in the year 2015. She invested a sum of money that equated to about AU$15,000 in what she thought was a genuine real estate deal. She was defrauded of the money, and ended up borrowing from a “lender of last resort” in order to repay the debt. The lender turned out to be the principal of a criminal organisation, who demanded repayment. He threatened to harm the applicant and her family when she proved incapable of paying. The applicant believed that those threats were well-founded. Eventually, she agreed to travel to Australia and undertake a task for the lender in order to work off her debt.

13. She arrived in Australia in March 2015. She signed a residential lease for six months at premises in Sydney, and activated a mobile phone. Later, she was ordered to arrange for receipt of consignments from overseas.

14. In late May 2015, an unknown person engaged a freight forwarding company to effect the delivery of a consignment to the leased premises. The applicant duly took steps to permit the delivery to be completed.

15. The consignment in the form of a large air compressor left Kuala Lumpur, Malaysia on 21 June 2015, and arrived in Sydney the following day. The applicant returned to Taiwan on 25 June 2015.

16. The authorities in Australia intercepted the compressor, and noted the presence of over 10 kg of pure heroin. The drug was removed and replaced with an innocuous substance.

17. Two separate consignments were delivered to the leased premises. They were parts for a compressor capable of converting powder into blocks. Clearly enough, those items were imported into this country on the assumption that the primary importation of the heroin would succeed.

18. Whilst still in Taiwan on 1 July 2015, the applicant continued to be in contact with the freight forwarding company, with an eye to completing the delivery of the air compressor.

19. Whilst in Taiwan, she was threatened by armed men at a remote location, who insisted that she proceed with her activities. They made it clear that they were well aware of the home addresses of members of her family.

20. On 6 July 2015, the compressor was delivered to the garage of a separate address in another suburb that had also been rented by the applicant. She returned to this country on 8 July 2015. The following day, acting under instructions, she attended the garage and commenced to use an angle grinder to cut into the body of the compressor. She engaged in the process of removing the bags containing the substituted substance from the compressor. She placed them into a backpack and travelled to some suburban shops, where she was met by two Taiwanese men. Acting pursuant to instructions received by phone, she purchased scales and sandwich bags, and began to repackage the substance in a public toilet. Clearly enough, that was directed towards the on-supply of the drug. Throughout the day, she was receiving instructions by phone.

21. Later, she accompanied the two men to an address, where she collected the parts of the compressor, and travelled to the city in a taxi with the two of them.

22. From there, she attended a hotel. It was there that she was arrested, and the bags were seized. The two men in the taxi were also arrested, and the parts from the second consignment were found to be in the boot of the vehicle.

23. The applicant was interviewed by police and gave details of her involvement in the importation. At that stage, she said nothing about having acted under duress caused by the threats against herself and her family.

24. The Crown case was that, at some stage during her second trip to Australia, she formed the mental element of recklessness with regard to the possibility that the item in question was a border controlled drug.

25. Subjectively, the applicant was 26 years of age at the time of the offending.

26. She had no criminal record whatsoever, and furthermore was affirmatively of prior good character.

27. She was found to be genuinely remorseful about what she had done. Her prospects of rehabilitation were found to be excellent.

28. Although there were some difficult aspects of her upbringing, it was neither traumatic nor neglectful.

29. The family of the applicant remained supportive of her.

30. At the time of the imposition of sentence, the applicant knew no English; her time in custody would be isolated and difficult for that and other reasons.

31. “Non-exculpatory” duress was affirmatively accepted by the sentencing judge to have played an important role in the genesis of this offending, and an important role in mitigation of sentence.

32. As I have said, none of those findings were impugned as erroneous in this Court, nor was the inevitability of a sentence of full-time imprisonment on resentence, nor were we asked by either party to revisit the ratio between the non-parole period and the head sentence of 5/8 or 62.5%.

33. In terms of the position as at the date of the hearing of the appeal, a body of affidavit evidence was placed before us. In a nutshell, the applicant has developed limited English during her years in custody. She has advanced to a category 2 classification, without any backward steps. She has had no infringements against prison discipline. She has worked throughout her sentence, and has been highly thought of in a number of roles. She was permitted to work outside a prison at one stage, though physical work then undertaken exacerbated a pre-existing arthritis. She has undertaken many courses in custody in an effort at rehabilitation. She has suffered from insomnia, and has heard voices (there is some question as to whether they are true auditory hallucinations, or rather the way that nocturnal ruminations are described in Taiwanese culture).

34. She is currently held at the Silverwater Women’s Correctional Centre (informally known as Mulawa). She has been held in a number of prisons over the past years, including Berrima, Broken Hill and Wellington. She transited through the latter institution on the long journey to Broken Hill.

35. Whilst at Wellington Correctional Centre, she was bashed by a number of other inmates who intended to rob her. She was significantly physically injured and very frightened by the experience. Later, she was transferred again to that prison, and was terrified of being assaulted again. She surreptitiously took a razor blade with her in an effort to defend herself if attacked again. When placed in a cell at that prison, she commenced to slash herself. That was not a suicide attempt, but rather an effort to avoid being incarcerated at that particular gaol. The result of that self-harm was that she ended up in segregation, and spent six weeks in solitude. During that time, she spent one hour a day out of the segregated facility, in order to exercise or prepare food.

36. Separately, she developed a romantic relationship with a woman in Mulawa in 2018. Eventually, the applicant decided to bring the relationship to an end. The other woman was angry, and struck the applicant with a small blade, cutting her on the inside of her left arm, and leaving a small scar. The applicant did not report the matter, for fear of reprisals. She was moved to Berrima Gaol with a non-association order between herself and the other woman. In Berrima, she was attacked by yet another inmate in the shower, who scratched the applicant with her fingernails. The applicant does not understand the motivation behind that attack.

37. The applicant has noted that the overwhelming majority of women in New South Wales prisons are drug addicts. That has led her to reflect more deeply, over the past many months, on the gravity of the conduct in which she involved herself.

38. Finally, we were told that, since her incarceration almost five years ago, the family of the applicant have been able to visit her on only the one occasion.

Submissions of the Crown

39. In resisting the proposition of the applicant that, on resentence, a lesser sentence is indeed warranted in law, the Crown placed significant weight on the decision of Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215. That was a decision of this Court in which duress also played a mitigating role.

40. In that matter, Johnson J at [32]-[54] spoke of the role that mitigatory duress can play as a factor on sentence. Although s 16A of the Crimes Act 1914 (Cth) does not speak of duress explicitly, his Honour was of the view that it undoubtedly has a role to play in sentencing for Commonwealth matters.

41. Having said that, his Honour emphasised that general deterrence remained a significant factor in that case, despite a finding of duress.

42. In that case, 2.03 kilograms of amphetamine and 55.1 grams of MDMA had been imported, resulting in the offender being charged with aiding and abetting the importation of a commercial quantity of amphetamine (first count), and the possession of an unlawfully imported marketable quantity of MDMA (second count). The offender, aged 28 at the time, travelled from Lithuania to Australia, was involved in leasing a storage facility for a granite pillar containing the drugs, and also in delivering them to the intended recipient. The offending occurred against a backdrop of serious ongoing threats from two men in Lithuania, directed both at the life of the offender and his girlfriend in Lithuania, including the production of a firearm to the offender’s head. Subjectively, the offender enjoyed a relatively stable life and consistent employment in Lithuania, with no criminal history there or elsewhere.

43. Having pleaded guilty, the offender received a 25% discount for his willingness to facilitate the course of justice on both counts. Ultimately, the Court imposed a sentence of eight years for the first count and five years for the second count with a measure of cumulation leading to a total head sentence of nine years, with a single non-parole period of five years.

44. Before us, the Crown more generally accepted the mitigating role that duress plays in the present matter. On the other hand, it was emphasised that the objective seriousness of the offence is very significant. It was also said that the applicant’s motivation for the offending was driven not solely by duress, but also arose from a desire to repay her debt.

Determination of question of resentence

45. The reference to the decision of Tiknius v R was helpful, though of course every case turns on its own facts, as a function of the process of instinctive synthesis. Here, the very powerful subjective features, including the sorry events that have occurred in custody since the imposition of sentence, must be balanced against the notably significant quantity of the drug sought to be imported; the crucial, long-standing, and multi-faceted role played by the applicant; and the obvious sophistication of the criminal enterprise with which she involved herself.

46. Exercising the sentencing discretion afresh, and taking care to be “unanchored” by the starting point adopted by the sentencing judge, I would commence with a head sentence of imprisonment for 10 years. Applying a 25% discount for the utilitarian value of the plea of guilty, one arrives at a head sentence of imprisonment for seven years six months. Replicating with the consent of the parties the ratio of 62.5%, one arrives at a non-parole period of four years eight months (having rounded down to a tiny degree).

47. Providing an identical backdate to 9 July 2015, the head sentence will expire on 8 January 2023, and the proposed non-parole period expired a few days ago, on 8 March 2020. It follows that the applicant should be considered as soon as reasonably practicable for release to parole by the Commonwealth Attorney-General, pursuant to section 19AL of the Crimes Act 1914.

Orders

48. I propose the following orders:

1. Extension of time to apply for leave to appeal granted.

2. Leave to appeal granted and appeal allowed.

3. The sentence imposed by Judge Craigie SC on 21 July 2017 is quashed.

4. The applicant, Tsai-Tong Kao, is sentenced to imprisonment for seven and a half years, to date from 9 July 2015 and to expire on 8 January 2023, with a non-parole period of four years eight months, that expired on 8 March 2020.

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Decision last updated: 13 March 2020