Lu v The Queen; Huang v The Queen

[2021] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lu v R; Huang v R [2021] NSWCCA 68

Hearing dates:

30 November 2020

Date of orders:

16 April 2021

Decision date:

16 April 2021

Before:

Bell P at [1];
Johnson J at [2];
R A Hulme J at [72].

Decision:

With respect to the Applicant Wei Lun Lu:

1. Extend time for the Applicant to seek leave to appeal against sentence to 1 September 2020.

2. Leave to appeal against sentence granted.

3. Appeal dismissed.

With respect to the Applicant Chun Huang:

1. Extend time for the Applicant to seek leave to appeal against sentence to 3 September 2020.

2. Leave to appeal against sentence granted.

3. Appeal dismissed.

Catchwords:

CRIME – appeal against sentence – applicants pleaded guilty to Commonwealth offence of attempting to possess a commercial quantity of a border controlled drug (methamphetamine) – whether Xiao v R error established – error demonstrated – no lesser sentence warranted on resentencing – appeals dismissed

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Appeal Act 1912

Criminal Code (Cth)

Cases Cited:

Bae v R [2020] NSWCCA 35

Betka v R [2020] NSWCCA 191

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6

Diaz v R [2019] NSWCCA 216

Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238

R v Qutami (2001) 127 A Crim 369; [2001] NSWCCA 353

R v Shannon (1979) 21 SASR 442;

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247

Weber v R [2020] NSWCCA 103

Winchester v R (1992) 58 A Crim R 345

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Yin v R [2019] NSWCCA 217

Texts Cited:

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Category:

Principal judgment

Parties:

Wei Lun Lu and Chun Huang (Applicants)
Regina (Respondent)

Representation:

Counsel:
Ms E McLaughlin (Applicant Lu)
Mr P Coady (Applicant Huang)
Ms B Anniwell (Respondent)

Solicitors:
Legal Aid NSW (Applicant Lu)
Schneider Legal Pty Ltd (Applicant Huang)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2016/145580 (Applicant Lu)
2016/145733 (Applicant Huang)

Publication restriction:

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 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

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Citation:

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Date of Decision:

14 July 2017

Before:

His Honour Judge Hoy SC

File Number(s):

2016/145580 (Applicant Lu)
2016/145733 (Applicant Huang)

Judgment

1. BELL P: I agree with Johnson J.

2. JOHNSON J: Each of the Applicants, Wei Lun Lu and Chun Huang, seeks leave to appeal with respect to sentences passed at the Sydney District Court on 14 July 2017 for offences of attempting to possess a commercial quantity of a border controlled drug (methamphetamine) contrary to ss.11.1(1) and 307.5(1) Criminal Code (Cth).

3. Following pleas of guilty, each Applicant was sentenced on 14 July 2017 by his Honour Judge Hoy SC to imprisonment for 10 years comprising a non-parole period of six years commencing on 11 May 2016 and expiring on 10 May 2022 with a balance of term of four years commencing on 11 May 2022 and expiring on 10 May 2026.

4. Another man, Po-Wen Yin, pleaded not guilty to the offence of possessing a commercial quantity of an unlawfully imported controlled drug (methamphetamine) contrary to s.307.5(1) Criminal Code (Cth). Following a two-week trial, he was convicted and sentenced to imprisonment for 16 years with a non-parole period of 10 years. His appeal with respect to sentence was dismissed by this Court: Yin v R [2019] NSWCCA 217.

Grounds of Appeal

5. By Notice of Application for Leave to Appeal filed on 1 September 2020, the Applicant Lu relies upon a single ground of appeal that, in determining the appropriate discount to reflect the value of his plea of guilty in accordance with s.16A(2)(g) Crimes Act 1914 (Cth), the sentencing Judge did not have regard to the utilitarian value of the Applicant’s plea of guilty.

6. By Notice of Application for Leave to Appeal filed on 3 September 2020, the Applicant Huang relied upon a single ground of appeal that the sentencing Judge failed to take into account the utilitarian value of his plea of guilty.

7. Each Applicant requires an extension of time under s.10(1)(b) Criminal Appeal Act 1912 to bring his application for leave to appeal against sentence.

8. In this respect, each Applicant relies upon affidavits, the effect of which is to explain the delay in bringing the application by reference to the decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and the impact of that decision upon the sentencing of each Applicant.

9. The discretionary power to extend the time limit to bring an appeal to this Court is legislative recognition that the interests of justice in a particular case may favour permitting an application for leave to appeal against sentence to be heard, notwithstanding that it was not brought within time. In determining what the interests of justice require, it is necessary to have regard to the prospects of success of the grounds of appeal should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33], [44].

10. Because of the decision of this Court in Xiao v R, the Crown accepted that there was merit in the Applicants’ grounds of appeal so that an extension of time was not opposed.

11. Having regard to the merits of the grounds of appeal, an extension of time should be granted to each Applicant.

Facts of Offences

12. A summary of the findings of fact made by the sentencing Judge (ROS3-6) is set out below.

13. The Applicants were aware of an enterprise importing a consignment of three crates into Australia from overseas. Two crates contained cement sheeting, while a third contained two calendar rollers, inside which was located a large quantity of methamphetamine (“the consignment”).

14. On 26 March 2016, both Applicants travelled from Taiwan to Brisbane with a co-offender Po-Wen Yin, intending to attempt to possess this unlawfully imported border-controlled drug. As part of this, they booked a storage unit in Storage King, Eastgardens (“Storage King”).

15. On 22 April 2016, EDI International Freight Management received an email updating the proposed delivery address of the consignment from an address in Penshurst to Storage King.

16. On 3 May 2016, the consignment arrived at Port Botany. On 4 May 2016, Australian Border Force officers intercepted the consignment and located a gross total of approximately 42 kilograms of methamphetamine within the rollers inside the consignment. On 6 May 2016, the Australian Federal Police (“AFP”) examined the consignment and removed the methamphetamine, replacing it with an inert substance.

17. On 11 May 2016, the AFP delivered the consignment to Storage King at approximately 9.06 am. The same day, each of the Applicants attended Storage King in a Queensland registered vehicle and spent the next three hours removing the substituted inert substance, packaging it into bags and transporting it to the Airbnb accommodation they had rented in Hurstville.

18. Both Applicants were arrested that same afternoon at or near the Airbnb residence in Hurstville. A search warrant was executed upon those premises and numerous items were seized including two shoulder bags, one of which had 11 clip seal bags containing the inert substance from the consignment and another shoulder bag containing 10 clip seal bags also containing the inert substance from the consignment. There were also numerous mobile phones, some in false names, Visa cards, documentation, passports for both Applicants, spare bags and a set of five kilo kitchen scales. There were also boxes and bags of other unused clip seal bags. The Storage King storage units were also searched the next day.

19. Forensic examination of the methamphetamine seized revealed the gross weight as being 41.5723 kilograms with a pure weight of methamphetamine of 33.057 kilograms. The commercial quantity is legislated at 750 grams. The purity has been calculated as being a range between 79% and 80.3%. At that time in New South Wales, the wholesale value of 41.5723 kilograms of impure methamphetamine was calculated at $8,314,460.00 (at approximately $200,000.00 per kilogram). The street value equated to about $24,943,380.00 (at approximately $600.00 per gram).

20. The Applicant Lu participated in a record of interview with investigating officers and made several admissions. The Applicant Huang declined to participate in an interview.

Approach to the Pleas of Guilty of Each Applicant in the District Court

21. Each Applicant pleaded guilty to the offence in the Local Court and was committed for sentence in the District Court.

22. In written submissions for the Crown at the District Court sentencing hearing, in accordance with the law as it stood prior to Xiao v R, it was noted that the decision in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 did not apply to federal offences and that it was not possible to give any discount upon the objective basis that the plea had saved the community the expense of a contested hearing. The Crown accepted that a federal offender can obtain a discount for a guilty plea if the offender establishes on the balance of probabilities that the guilty plea demonstrated subjective mitigation by way of genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice.

23. At the sentencing hearing on 13 July 2017, counsel for the Applicant Lu submitted that a 25% discount should be extended to his client for his plea of guilty (T29, 13 July 2017). Counsel for the Applicant Huang likewise submitted that a 25% discount should be extended for his client’s plea of guilty (T38, 13 July 2017). The Crown submitted that the pleas of guilty had been entered at an early stage, but no submission was made concerning quantification by way of a percentage discount (T46, 13 July 2017).

24. The sentencing Judge extended a 25% discount to each Applicant for his plea of guilty. His Honour explained this finding in the following way (ROS17-18):

“As to the guilty pleas Crown agrees that the plea from each offender was entered at the first reasonable opportunity. As to relevant discount there is some recent commentary in the case of DPP v Gow [2015] NSWCCA 208 at [26] to [28] where the Court there considered some of the principles previously referred to by the High Court in Cameron v The Queen (2002) 209 CLR 339.

In particular the New South Wales Court of Criminal Appeal indicated that there were generally four overlapping considerations available as bases for reducing a sentence following a plea of guilty. These included remorse; acceptance of responsibility, willingness to facilitate the course of justice and sparing the community the expense of a contested trial (see [28]). I accept that this was obiter as the Court expressed no final view. However, these factors do not seem to have been excluded from consideration.

I appreciate the Crown’s submission as to the relevance of the strength of the Crown case and whether indeed the plea is based on a willingness to facilitate the course of justice or merely recognition of the inevitable. With respect, overall, taking into account all other factors, I prefer the former and conclude that each offender is entitled to a discount for entering their pleas and whilst not obliged to quantify such discount, for reasons of transparency, I think it falls at 25%. In so quantifying I again emphasise that it is a strong prosecution case.”

The Grounds of Appeal Asserting Error Concerning the Utilitarian Value of the Pleas of Guilty

Submissions

25. Ms McLaughlin, counsel for the Applicant Lu, and Mr Coady, counsel for the Applicant Huang, each submitted that, in light of the decision in Xiao v R, the sentencing Judge failed to have regard to the utilitarian value of the plea of guilty of each Applicant. This submission was supported by reference to a number of decisions of this Court where error of this type has been demonstrated.

26. The Crown accepted that Xiao v R error had been demonstrated in this case and that it was appropriate for the Court to undertake the discretionary process under s.6(3) Criminal Appeal Act 1912. The Crown submitted that the Court would determine that no lesser sentence was warranted in the case of each Applicant.

Decision

27. The sentencing Judge referred to the decision of this Court in Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208 where Basten JA (Hamill J agreeing) considered the approach to a plea of guilty for federal offences, in a manner which called into question what had been said in decisions of this and other courts concerning the High Court decision in Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 with respect to sentencing federal offenders.

28. In Xiao v R, the Court (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ) noted (at [263]) that the Court in Director of Public Prosecutions (Cth) v Gow had questioned the earlier decision of this Court in Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247. The decision in Xiao v R overruled Tyler v R and drew support in that approach from the decision in Director of Public Prosecutions (Cth) v Gow.

29. In this respect, the sentencing decision for the present Applicants differs from other appeals to this Court which relied upon Xiao v R error.

30. In Weber v R [2020] NSWCCA 103, Simpson AJA (Rothman J agreeing in separate reasons) expressed some reservations about acting upon a Crown concession of Xiao v R error based on the absence in the sentencing remarks of any reference to the “utilitarian value” of the applicant’s plea (at [8]), although ultimately her Honour did so. In explaining her Honour’s reservations, reference was made to sentencing decisions which stated that a reduction in sentence for State and federal offences for a plea of guilty was intended to serve two distinct purposes, being evidence of contrition and utilitarian considerations flowing from saving the time and cost of a trial: R v Shannon (1979) 21 SASR 442; Winchester v R (1992) 58 A Crim R 345 at 350. Reference was made, as well, to Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 where Gleeson CJ, Gummow, Hayne and Callinan JJ said at [22] (emphasis added):

“A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.”

31. As Simpson AJA observed in Weber v R at [12], in each of these cases the rationale for the “pragmatic” or “utilitarian” reduction was identified as the saving of expense to the community in avoiding the costs of preparation for, and the conduct of, a trial.

32. At the hearing of these matters on 30 November 2020, the Court raised with counsel the statements of Simpson AJA in Weber v R and their application (if any) to the present appeals (T14, 30 November 2020).

33. Unlike other appeals to this Court based on Xiao v R error, the sentencing Judge, in the case of the present Applicants, did not state that the utilitarian value of the pleas of guilty was not to be taken into account on sentence. Indeed, his Honour referred to Director of Public Prosecutions (Cth) v Gow and the “four overlapping considerations” available to reduce sentence following a guilty plea which included “sparing the community the expense of a contested trial”. On its face, it appears that the sentencing Judge took into account the utilitarian value of the plea of guilty of each Applicant, together with other factors, in determining to allow a 25% discount for the plea of guilty of each Applicant.

34. It was submitted for each Applicant and by the Crown that what his Honour did in the end was to take into account a mixture of objective and subjective considerations for the purpose of extending a 25% discount to each Applicant for his plea of guilty. In this way, his Honour had regard to remorse as well as acceptance of responsibility, willingness to facilitate the course of justice and sparing the community the expense of the contested trial.

35. In Bae v R [2020] NSWCCA 35, the Court found Xiao v R error and stated (at [52]) that in considering the nature of a discount for the utilitarian value of a guilty plea, it was helpful to have regard to the decision of this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32]-[33].

36. With the agreement of Bell P and Walton J, I said in Bae v R at [53]-[57]:

“53   The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth).

54   Counsel for the Appellant and the Crown both accepted at the hearing in this Court that the principles in R v Borkowski provided assistance in assessing the utilitarian value of a guilty plea for a Commonwealth offence (T2-3, 5, 11, 6 February 2020).

55   It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender’s favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations.

56   As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]:

‘Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.’

57   The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.”

37. What was said in Bae v R has been applied in subsequent decisions including Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 at [60] and Betka v R [2020] NSWCCA 191 at [57]-[59].

37. Having considered the submissions made in the present appeals, against the background of earlier decisions where Xiao v R error was said to have occurred, I accept that error has been demonstrated in these cases on what may be a relatively technical basis that (for entirely understandable reasons), the sentencing Judge calculated the 25% discount by reference to a mixture of objective and subjective factors as understood in the sense explained in Bae v R at [55]-[57]. In effect, the sentencing Judge has included, under the one quantified umbrella, factors which bore upon the plea of guilty of each Applicant (s.16A(2)(g) Crimes Act 1914 (Cth)) and the issue of contrition (s.16A(2)(f)). This conclusion is similar to that in Diaz v R [2019] NSWCCA 216, although the present case involves an even more technical point given the sentencing Judge’s express reliance upon Director of Public Prosecutions (Cth) v Gow.

38. Accordingly, and not without some hesitation, I accept that error has been demonstrated in these appeals so as to require the Court to give further consideration to the question of sentence under s.6(3) Criminal Appeal Act 1912.

Resentencing the Applicants

40. In exercising its function under s.6(3), the Court should take into account all relevant matters, including evidence (if any) of the progress of each Applicant towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

41. A number of affidavits were relied upon by each Applicant on resentencing. The Applicant Lu relied upon his affidavit dated 26 October 2020 together with the affidavit of his solicitor, Suzanne Tezjan Knowles, dated 26 October 2020. The Applicant Huang relied upon his affidavit dated 16 November 2020 on resentence.

Some Findings of the Sentencing Judge

42. As noted earlier, the pure weight of methamphetamine was 33.572 kilograms extracted from a gross or impure weight of 41.572 kilograms. The pure quantity was approximately 44 times the commercial quantity of 0.75 kilograms. The wholesale value of the impure methamphetamine was agreed as being about $8,315,000.00 with an estimated street value of some $25,000,000.00. This was a very substantial and valuable quantity of methamphetamine.

43. His Honour considered the roles of the Applicants (ROS8-10):

“As to the roles of each offender the Crown submits they ought be sentenced on the basis of being at the lower end of the drug hierarchy dealing with this consignment. That is not disputed by either offender. I do not think however each of the offender’s involvement can be quite so simplistically characterised. As to their respective roles which is generally in parallel and/or overlapping each other, they do reflect a considerable degree of planning and sophistication attaching to the lead up to their arrest and their overall involvement, both preparatory and in execution. Whilst it may be trite, both came from Taiwan to Australia. Mr Lu purchased a motor vehicle. Both attended at the relevant storage unit to book the units and subsequently pick up the drugs. They spent hours accessing the consignment and in so doing went and bought further tools to try and release the substituted inert substance. It of course had been put there by the investigating authorities. They then took the substance extracted from the consignment in individual bags, 21 separate clip seal bags, back to their rented accommodation. Those bags containing the inert substance were found within the rented premises. The vehicle had within it a set of digital scales together with many more clip seal bags. Each offender used various telephones which had been previously subscribed in false names. Some of the phones contained photographs of the consignments within one of the storage units. Another phone, also in a false name, contained not only text messages between the offender Mr Lu and the accused Mr Yin on the day of the offence, but also photographs of part of the consignment, that is the cylindrical rollers from which the inert substance had previously or had been extracted by the offenders. Both offenders came to Australia with Mr Yin, the co-accused. He is presently facing trial and on the Crown case he is higher up in the hierarchy. Both had regular contact with Mr Yin on the telephone and personally and again sometimes using phones which were subscribed under false names.

I acknowledge also that within the facts there are some indicators of naivety. For example Mr Lu purchased and registered the motor vehicle in Queensland in his own name. He had a motor vehicle licence in his own name. He produced that and rented the storage unit in his own name. These aspects however are well counterbalanced by the other more sophisticated indicia of preparation and execution. Whilst there is evidence that the offenders, apparently unable to open the cylinder rolls, purchased additional tools to break them open, neither offender appears to have taken any particular managerial role or exercised any overarching independent judgement and/or initiative. The exception to that seems to be the retreat to get extra tools to complete their task. The text messages reflect constant liaison with Mr Yin responding and complying with his instructions. This is contained for example in annexure A to the statement of agreed facts, tab 3, Crown exhibit A. From the outset and during their activities particularly on 11 May 2016, both were constantly beholden to Mr Yin even after they obtained what they thought was the methamphetamine instructions were still being received from Mr Yin as to the disposal of the crates. It seems to me that their involvement was however continued and substantial, receiving information, responding, acting upon instructions and reporting back”.

44. His Honour considered aspects of the offences before returning to find that the offending and culpability of each Applicant fell “almost at the middle range of objective seriousness” (ROS11-12):

“Whilst I am satisfied that they were at the lower end of the hierarchy in what has been described by the Crown as a highly organised and sophisticated drug operation, this does not diminish the seriousness of the offence or their respective involvement. They were a critical and direct link between the overseas supplier and the proposed ongoing distribution of the drugs within Australia. As is often the case they were the personnel in this enterprise most exposed to detection, arrest and thereafter imprisonment. As indeed as has occurred. Their role was an essential component in the distribution, or proposed distribution, of illicit drugs. They were essential cogs in a disgraceful industry recruited by more sinister and criminal personnel to surreptitiously extract the border controlled drug from the consignment within which it had been concealed and apparently prepare it for distribution. The offence and their involvement was not in any way spontaneous or impulsive.

On behalf of the offenders it is submitted that their offending falls at below the mid-range of objective seriousness. Much in that submission hinges on their degree of knowledge as to the quantity of the drug. The Crown submits that the matters fall at the middle range of objective seriousness. Having regard to my earlier findings it seems to me that they were aware of the significant amount of the drug and their offending and culpability falls almost at the middle range of objective seriousness.”

45. The sentencing Judge considered the subjective material in evidence and noted that neither Applicant had given evidence at the sentencing hearing so that care was required with respect to it in accordance with the principles in R v Qutami (2001) 127 A Crim 369; [2001] NSWCCA 353.

46. His Honour outlined the subjective evidence with respect to the Applicant Huang with his Honour noting that he would “no doubt benefit from ongoing counselling and programs, both in custody and upon his release” (ROS12-15).

47. The sentencing Judge then considered subjective evidence tendered on behalf of the Applicant Lu (ROS15-17). Amongst the material which his Honour accepted operated in favour of the Applicant Lu, reference was made to “some very positive certificates that have been awarded to him since going into custody” which confirmed “his excellent work record and some courses that reflect his positive Christian studies” (ROS17).

48. His Honour found that each Applicant was a man of previous good character who had demonstrated genuine contrition and accepted responsibility for their actions. His Honour found that each Applicant had “good prospects of rehabilitation” (ROS19-20).

49. His Honour took into account that each Applicant would suffer considerable hardship being imprisoned in Australia, away from family and friends and the usual support that they would provide to a person in custody, so that their custody would be more onerous (ROS19).

50. The sentencing Judge found that each Applicant should receive the same sentence (ROS19-20):

“During submissions discussion touched on their respective roles and whilst neither offender made any specific submission as to differing roles, learned Crown indicated candidly, albeit softly, that perhaps the Court could find that the role of Mr Huang was slightly higher than that of Mr Lu. I have discussed those roles here in these remarks and in particular concluded where they fit in the hierarchy of this enterprise. As indicated in argument it seems to me that the differences in these roles are subtle but they are there. Overall and generally speaking, I think they should be considered as equal participants. In so finding, this is of more benefit to Mr Huang. In this exercise I have also taken into account that Mr Lu made admissions upon his arrest whereas Mr Huang did not. Overall I have considered also their respective subjective circumstances and whilst there is an age differential, about ten years between them, there are also differences in addictions, vices, lifestyles and predicaments. That said, taking all those into account together with the objective features, it seems to me they should both receive like sentences.”

51. Regard was had to sentencing decisions in other cases (ROS20-24) and to the need for general deterrence to be reflected on sentence for offences of this type (ROS25-26).

Submissions on Resentencing the Applicants

52. In this Court, Ms McLaughlin submitted that the Applicant Lu should be characterised as occupying a lower position in the hierarchy so that a lesser sentence should be imposed upon him than his co-offender. Ms McLaughlin accepted that each of the Applicants carried out similar acts for the purposes of the offence, but submitted that a proper basis existed for differentiating between them in this way.

53. Ms McLaughlin submitted further that the Applicant Lu had undertaken further courses whilst in custody, as reflected in his affidavit and the affidavit of Ms Knowles, and that his period in custody had been difficult due to the element of isolation from family and friends.

54. Mr Coady pointed to the affidavit of the Applicant Huang, which indicated the work he had carried out in different correctional centres during his sentence and the difficulties arising from his separation from family in Taiwan and his limited capacity to speak English.

55. It was submitted for each Applicant that full weight should be given to the utilitarian value of the plea of guilty in each case for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth), together with the additional subjective factors of contrition (s.16A(2)(f)) and good prospects of rehabilitation.

56. It was submitted for each Applicant that having regard to all evidence before this Court, a lesser sentence should be imposed upon each of them than that passed at first instance in the District Court.

57. The Crown submitted that, in effect, each Applicant received the right discount, but for the wrong reasons: Diaz v R at [78].

58. For the purpose of resentencing, the Crown submitted that each offence was serious by reference to sentencing factors enumerated in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72]. The Crown submitted that the sentencing Judge had characterised correctly the roles of each Applicant as being equal whilst acknowledging some subtle differences. Reference was made to aspects of the offending conduct of each Applicant in support of the submission that it was appropriate to impose the same sentence on each Applicant.

59. The Crown submitted that the Court should determine that no lesser sentence is warranted with respect to each Applicant for the purpose of s.6(3) Criminal Appeal Act 1912 so that each appeal ought be dismissed.

The Sentencing Outcome for Each Applicant

60. Where this Court has found that a sentencing Judge’s discretion has miscarried, its power to resentence is enlivened unless, in the exercise of its discretion, the Court is satisfied that no other (lesser) sentence is warranted in law. The Court is required to form its own view of the appropriate sentence rather than confining itself to the determination of whether the identified error infected the sentence imposed below. Exceptional cases apart, the Court’s determination of the appropriate sentence is determined on the material that was before the sentencing Judge, the sentencing Judge’s unchallenged factual findings and any relevant evidence of the offender’s post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].

61. I accept and adopt the findings of fact made by the sentencing Judge, together with his assessment of the objective seriousness of the offence committed by each Applicant. These were substantial offences committed for financial gain. Application of the factors referred to in R v Nguyen; R v Pham at [72] warranted a substantial sentence of imprisonment for each Applicant.

62. I am satisfied that it is appropriate to pass the same sentence of imprisonment for each Applicant. Although, as the sentencing Judge found, there are shades of difference between the two men, the appropriate sentencing outcome in my view ought see imposition of the same sentence.

63. The sentencing Judge made favourable findings concerning the subjective circumstances of each Applicant. Each of them was found to have good prospects of rehabilitation. A finding was made that each Applicant would find imprisonment more onerous because of their distance from family in Taiwan and associated problems including language difficulties. The additional evidence adduced in this Court confirms these aspects and the appropriateness of the findings made by the sentencing Judge in that respect.

64. It is appropriate to retain a 25% discount to reflect the utilitarian value of the plea of guilty of each Applicant. To the extent that the sentencing Judge (for understandable reasons) appears to have factored into his calculation at first instance subjective considerations including the existence of remorse, that has given rise to a finding of error so that the Court is considering afresh the question of sentence for each Applicant.

65. I keep in mind that, since July 2020, s.16A(2)(g) Crimes Act 1914 (Cth) provides that a sentencing court must take into account:

“(g)    if the person has pleaded guilty to the charge in respect of the offence:

(i)    that fact; and

(ii)    the timing of the plea; and

(iii)    the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence.”

66. As noted earlier, this is not a case where the sentencing Judge excluded the utilitarian value of the pleas from consideration in determining the quantified discount for the pleas of guilty. His Honour had regard to that factor, but included as well, subjective factors including remorse.

67. In exercising independent sentencing discretion as required under s.6(3), I have taken into account subjective considerations arising with respect to each Applicant. These aspects overlap with and serve to fortify considerations such as prospects of rehabilitation. Favourable findings should continue to be made with respect to each Applicant in this respect.

68. Having regard to all objective and subjective factors relevant to sentence, and after applying a 25% discount to reflect the utilitarian value of the plea of guilty for each Applicant in accordance with s.16A(2)(g) Crimes Act 1914 (Cth), I am satisfied that a head sentence of imprisonment of less than 10 years is not warranted for each Applicant. Likewise, I am not satisfied that a non-parole period less than six years is warranted in the case of each Applicant.

69. Having formed the opinion that a lesser sentence is not warranted in law and should have been passed with respect to each Applicant, the appropriate conclusion is that the appeal of each Applicant should be dismissed.

70. With respect to the Applicant Lu, I propose the following orders:

1. extend time for the Applicant to seek leave to appeal against sentence to 1 September 2020;

2. leave to appeal against sentence granted;

3. appeal dismissed.

71. With respect to the Applicant Huang, I propose the following orders:

1. extend time for the Applicant to seek leave to appeal against sentence to 3 September 2020;

2. leave to appeal against sentence granted;

3. appeal dismissed.

72. R A HULME J: I agree with Johnson J.

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Decision last updated: 16 April 2021