Walsh v R (Cth) - [2020] NSWCCA 182

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Walsh v R (Cth) [2020] NSWCCA 182
Hearing dates: 14 July 2020
Date of orders: 3 August 2020
Decision date: 03 August 2020
Before: Ward CJ in Eq at [1];
Wilson J at [2];
Ierace J at [41].
Decision:
(1)   Extend the time in which to bring an application for leave to appeal against sentence to 22 April 2020;
(2)   Grant leave to appeal;
(3)   Quash the sentence imposed on 21 December 2016 by Jeffreys DCJ; and,
(4)   In lieu, sentence the applicant to 9 years imprisonment, to date from 12 January 2016 and expiring on 11 January 2025; with a non-parole period of 4 years and 9 months, expiring on 11 October 2020, on which date the applicant will be eligible for parole.

Catchwords:
CRIMINAL LAW – appeal against sentence – conspiracy to import a marketable quantity of a border controlled drug – plea of guilty – “Xiao error” – failure to take into account the utilitarian value of the plea of guilty – error conceded – whether a lesser sentence is warranted in law – strong subjective case – evidence pointing to rehabilitation having been achieved

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)
Crimes Act 1914 (Cth)

Cases Cited:
Lee v R [2012] NSWCCA 123
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
Thammavongsa v R [2015] NSWCCA 107; (2015) 251 A Crim R 342
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment
Parties: Torikai Walsh (Applicant)
Regina (Crown)
Representation:
Counsel:
Applicant (self-represented)
Sam Duggan (Crown)
Solicitors:
Applicant (self-represented)
Director of Public Prosecutions (Cth) (Crown)

File Number(s): 2014/00250028
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

21 December 2016

Before:

Jeffreys DCJ

File Number(s):

2014/00250028

Judgment

WARD CJ in Eq: I agree with Wilson J.
WILSON J: Having entered a plea of guilty to a charge contrary to ss 307.2(1) and 11.5(1) of the Criminal Code (Cth) of conspiring to import a marketable quantity of a border controlled drug, the applicant was sentenced on 21 December 2016 to a term of 9 years imprisonment to date from 12 January 2016, with a non-parole period (“NPP”) of 5 years, expiring on 11 January 2021.
Fourteen months after that sentence was imposed, on 5 February 2018, the decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 (“Xiao”) was handed down by this Court.
The applicant seeks leave to appeal out of time, proposing a single ground of appeal, that there was “Xiao error” in the imposition of sentence upon him. The applicant complains that he was not afforded the full worth for the plea of guilty he had entered, in recognition of its utilitarian value. The Crown concedes…

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 Walsh v R (Cth)

Details

AGLC: Walsh v R (Cth) [2020] NSWCCA 182
Case: [2020] NSWCCA 182
Decision Date: 03 August 2020

CaseChat Overview and Summary

The appellant, Walsh, appealed against his sentence for conspiracy to import a marketable quantity of a border-controlled drug. The appeal was brought before the court after a plea of guilty was entered. The appeal centred around the concept of a "Xiao error" where the sentencing judge failed to take into account the utilitarian value of the plea of guilty. This error was conceded by the prosecution. The court was required to determine whether a lesser sentence was warranted in light of this error and whether the appellant had made a strong subjective case for a reduced sentence based on evidence pointing to rehabilitation.

The court considered the principles established in Xiao v R (Cth), which highlighted the importance of recognising the utilitarian value of a guilty plea. The appellant's legal team argued that the failure to consider this value constituted a significant error that warranted a lesser sentence. The court acknowledged the concession by the prosecution and the strong subjective case made by the appellant, including evidence of rehabilitation. The court weighed these factors against the seriousness of the offence and the need for general deterrence.

In reaching its decision, the court determined that the error in not considering the utilitarian value of the guilty plea was significant and warranted a reduction in the sentence. The court found that the appellant had made a strong subjective case for a reduced sentence, taking into account the evidence of rehabilitation and other mitigating factors. The court ultimately reduced the sentence, reflecting the appropriate weight given to the error and the appellant's rehabilitation prospects.

Orders