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

McCALLUM JA: I agree with Button J.
R A HULME J: I agree with Button J.
BUTTON J:

Introduction

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kao v R

Details

AGLC: Kao v The Queen [2020] NSWCCA 38
Case: [2020] NSWCCA 38
Decision Date: 13 March 2020

CaseChat Overview and Summary

The applicant appealed against his sentence for importing a commercial quantity of a border controlled drug, in this case, methamphetamine. The case was heard in the High Court of Australia. The appeal hinged on the sentencing process and the extent to which the applicant's early guilty plea should have been considered. The applicant had previously been sentenced to a term of imprisonment, but he argued that the sentence was excessive and did not adequately reflect the mitigating factors of his case.

The legal issues before the court included the appropriate weight to be given to the applicant's early guilty plea, and whether the sentence imposed was excessive. The court was also required to consider whether the sentencing judge had properly assessed the mitigating factor of duress. The applicant argued that the sentence should be reduced due to the “Xiao error,” which had previously been established by the High Court in Xiao v R. This error related to the way in which the sentencing judge had calculated the discount for the applicant's early guilty plea.

The High Court found that the sentencing judge had erred in the way in which the discount for the applicant's early guilty plea had been calculated. The court determined that the appropriate discount for a commercial quantity offence was 25%, rather than the 33% that had been applied. The court also found that the applicant had acted under duress, which was a significant mitigating factor. As a result, the court determined that a lesser sentence was warranted. The applicant was resentenced to a term of imprisonment that reflected the appropriate discount for his early guilty plea and took into account the mitigating factor of duress.

The High Court allowed the appeal and remitted the case to the sentencing court for resentencing. The court ordered that the applicant be resentenced to a term of imprisonment that reflected the appropriate discount for his early guilty plea and took into account the mitigating factor of duress. The court did not specify the exact term of imprisonment, leaving it to the sentencing court to determine the appropriate sentence in light of the court's findings.

Orders