Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kaurasi v R (Cth) [2020] NSWCCA 253 Hearing dates: 7 July 2020 Date of orders: 7 October 2020 Decision date: 07 October 2020 Before: Fullerton J at [1]; Wilson J at [8]; Ierace J at [63] Decision: 1. Leave to appeal granted; 2. Sentence imposed on 16 August 2019 is quashed; 3. In lieu, the applicant is sentenced to a term of 11 years and 3 months imprisonment, to date from 17 August 2018 and expiring on 16 November 2029; the non-parole period is a term of 8 years and 5 months imprisonment, expiring on 16 January 2027. Catchwords: APPEAL – application for leave to appeal against sentence – offence of importing a commercial quantity of a border controlled drug – cocaine imported by sea secreted within legitimate cargo – whether sentencing judge erred in the approach to the assessment of the utilitarian value of the plea of guilty – "Xiao error" Legislation Cited: Crimes Act 1914 (Cth). Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Code (Cth) Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) Cases Cited: Baden v R [2020] NSWCCA 2 Bae v R [2020] NSWCCA 35 Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191 Huang aka Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70 Kannis v R [2020] NSWCCA 79 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Tait and Bartley (1979) 24 ALR 473; (1979) 46 FLR 386 Xiao v R (2018) 96 NSWLR 2; [2018] NSWCCA 4 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 Category: Principal judgment Parties: John Kaurasi (Applicant) The Crown (Respondent) Representation: Counsel: D Carroll (Applicant) B Anniwell (Respondent) Solicitors: Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Cth) (Respondent) File Number(s): 2018/253803 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 August 2019 Before: Weber DCJ File Number(s): 2018/253803 Judgment 1. FULLERTON J: I agree with Wilson J that the error contended for by the applicant has been made out. I also agree with her Honour's reasons for so finding. 2. However, after exercising the sentencing discretion in accordance with the approach in KentwelI v The Queen (2014) 252 CLR 601; [2014] HCA 37, I have come to a different conclusion on the question of resentence. I would allow a 25% discount for the applicant's early plea of guilty which, together with the 5% the sentencing judge allowed for assistance to the authorities, amounts to a combined discount of 30%. 3. In the authorities to which I referred at some length in Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191, and to which Wilson J also referred in concluding that error had been made out in this case, it is accepted that the timing of a plea of guilty for both Commonwealth and State offences is largely determinative of its objective or utilitarian value. It is also accepted that it is that feature of an offender's plea of guilty which attracts an arithmetical sentencing discount. While the same authorities note that in the assessment of the utilitarian value of the plea of guilty for a Commonwealth offence under s 16A(2)(g) of the Crimes Act 1914 (Cth) there is a need to guard against the application of the fixed or normative sentencing discount that applies to State offences, it is generally accepted that an early plea of guilty for a Commonwealth offence will attract a discount of 25%. 4. The applicant entered a plea of guilty at the Local Court on 8 May 2019. It was accepted by the parties before the primary judge, and not put in contest on the appeal, that it was a plea entered at the earliest reasonable opportunity. 5. The enquiry into the applicant's current attitude to his offending as part of the resentencing exercise comprehends considerations of contrition and remorse as provided for in s 16A(2)(g). They are subjective factors. Their assessment does not attract an arithmetical discount. Rather, they are factors which favour an offender in the process of arriving at a sentence. While I accept that a demonstrated lack of remorse or contrition may be a most material factor influencing the ultimate sentence to be imposed, it is important, in my view, to ensure that such weight, or the lack of it, that those considerations might attract in the sentencing exercise are not treated in a way that either increases or diminishes the utilitarian value of the plea by some arithmetical measure. 6. In my view, the applicant's affidavit of 25 June 2020, relied upon in the event of resentence without demur from the Crown, evidences a marked level of insight into his offending, including what I accept is his genuine remorse and contrition. That evidence, coupled with the affidavit from the applicant's solicitor to which the applicant's custodial records are annexed, when read together with the materials relied upon by the applicant before the primary judge, also allows for a finding that the applicant has sound prospects of rehabilitation and that he has made, and continues to make, progress to that end in the custodial setting. 7. After allowing a combined discount of 30% for the applicant's plea of guilty and his assistance to the authorities, I propose the following orders: 1. The sentence imposed in the District Court on 16 August 2019 is quashed. 2. In lieu thereof, the applicant is sentenced to a term of imprisonment of 11 years and 3 months commencing on 17 August 2018 and expiring on 16 November 2029 with a non-parole period of 8 years and 5 months expiring on 16 January 2027. 1. WILSON J: John Kaurasi ("the applicant") seeks leave to appeal against the sentence imposed upon him on 16 August 2019 in the District Court of New South Wales for an offence of importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code (Cth). He advances a single ground, complaining that the sentencing judge erred in assessing the utilitarian value of the plea of guilty. The Proceedings in the District Court 1. The matter came before his Honour Judge Weber on 2 August 2019 for hearing of the proceedings on sentence. The evidence tendered by the Crown and the applicant was received, and his Honour heard submissions on sentence. Since the only issue for this Court to resolve is the question of the correctness of the discount awarded to the applicant to reflect the utilitarian value of his early plea, I do not propose to set out the material in any detail. The Crown Case 1. The Crown tendered an "Agreed Statement of Facts" which gave the circumstances of the commission of the offence. 2. The applicant is a Fijian national who imported 42.941 kilograms of pure cocaine concealed within boxes of "Fiji Water", the latter being a product produced by a Fijian company by which he was employed. The amount of cocaine that constitutes a commercial quantity is two kilograms. 3. In April and May 2018, the applicant travelled between Fiji and Sydney. When in Sydney he opened two bank accounts, and deposited large sums of cash into a bank account held by Justin Ho. In late May 2018, he took steps to arrange for a pallet of Fiji Water to be shipped from Fiji to Sydney, ostensibly for a wedding that was to take place there. In early June 2018, he purchased 72 boxes, each containing 24 bottles of Fiji Water, which were sent to Sydney. 4. The applicant monitored the progress of the shipment of Fiji Water, which shipped via Auckland in New Zealand. Some of his communications with the dispatching agent queried the date of the arrival of the cargo into Sydney, and whether it would arrive in time for the wedding on 28 July 2018. 5. The consignment arrived in Sydney aboard ship on 7 August 2018. The applicant travelled to Sydney two days later, arriving on 9 August 2018. Over the following days the applicant made a number of inquiries about the cargo, which was to be delivered to the home address of a family member in Sydney. 6. On 10 August 2018, authorities inspected the cargo and detected a number of anomalies. On examination the boxes were found to contain 50.071.5 kilograms of cocaine, the purity of which was in the range of 84% to 86%, yielding the pure weight of 42.941 kilograms. 7. On 15 August 2018, Australian Federal Police officers executed a search warrant at the home of the family member who was given as the consignee of the Fiji Water cargo. A number of relevant items were located, including mobile devices with encryption software, and evidence of encrypted communications between the applicant and "Bulla". Among the communications were messages about the handover of the drug cargo. 8. When interviewed by police on 17 August 2018, the applicant acknowledged having been responsible for packing and shipping the Fiji Water to Sydney, he said with the intention of selling the water. Officers calculated that he would have made a net loss on the transaction if that were the true purpose of shipping the water to Sydney. 9. It was conceded by the Crown that the applicant had not been the source of the cocaine; the date upon which he acquired knowledge of the importation of cocaine was said to be a matter to be determined by the sentencing judge. The Defence Case 1. The applicant did not give evidence. He wrote a letter to the sentencing judge, and otherwise relied upon a psychological report, some references from family members and others, certificates of attainment, and notes relevant to his conduct in custody. A press article concerning criminal proceedings in Fiji of Justin Ho was also tendered. 2. In his letter, the applicant expressed his shame and remorse for his actions and apologised to his family and others he had hurt. He said he intended to use his time in custody to better his education and skills, so that he could make a positive contribution to society on release. He characterised himself as a "young man who made a very foolish mistake in life". 3. Ms Kris North, forensic psychologist, reported (on the basis of information supplied by the applicant) that he had a stable upbringing and generally positive lifestyle, with no criminal antecedents and continuous employment. After taking up employment that involved international travel and "partying," his alcohol consumption increased and his marriage ended. His use of alcohol thereafter escalated further, and Ms North considered the applicant to have an alcohol use disorder. On the basis of the applicant's account to her, Ms North concluded that his drinking may have had an impact on his decision-making skills and led to his involvement in the offence. 4. The applicant's account of his involvement in the importation differed from that given in the agreed facts, with the applicant claiming to have had no knowledge of the presence of cocaine in the Fiji Water shipment. He said he had involved himself in a "good business proposition" involving the importation of Fiji Water. 5. The applicant displayed no mental health issues, and had good family support. Ms North thought that he posed a low risk of reoffending. 6. A number of certificates of training in heavy vehicle mechanics, and awards made to the applicant by his employer, evidenced his good employment record. Notes made by staff of Corrective Services NSW ("CSNSW") stated that the applicant had a good work ethic and was a reliable, polite, and respectful inmate. 7. Testimonials from family members also spoke of his good character, and of his remorse. The applicant had employment to go to in Fiji upon his release. 8. The newspaper article relating to Justin Ho described criminal proceedings in Fiji against the man the applicant asserted was "Bulla", for facilitating the export of more than two kilograms of cocaine from Nadi. The Remarks on Sentence 1. Sentence was imposed upon the applicant on 16 August 2019. He was then 30 years old. 2. The sentencing judge set out the facts of the offence as agreed between the parties, and concluded that it was an objectively serious offence, reflected by the maximum penalty of life imprisonment and/or a substantial fine. Although accepting that the applicant was "unlikely to have been the principal behind the importation," his Honour sentenced the applicant on the basis that he "played an important role in the logistics of the importation", with knowledge of the quantity of cocaine imported, which he had himself packed. His Honour concluded that the offence was committed for financial gain. 3. Of the early plea, and the issue of contrition, the sentencing judge said: "[…] the offender pleaded guilty in the Central Local Court on 8 May 2019. The following principles are relevant to the fact that the federal offender has entered a guilty plea. First, the sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing with regard to federal offences. Next, the federal offender can obtain a discount for a guilty plea if he or she establishes on the balance of probabilities in the Court or the prosecution agrees that the guilty plea and any associated evidence demonstrated an objective mitigation of genuine remorse, acceptance of responsibility, and/or willingness to facilitate the course of justice. Next, a significant factor relevant to the extent of any discount and reduction of sentence in timing of plea when it was entered in the first reasonable opportunity. Next, the Court may specifically quantify the sentence discount for a guilty plea. However, the guilty plea is taken into account. There is no obligation for the Court to quantify. Next, the strength of the prosecution case may be taken into account in assessing the objective value of the guilty plea, and the Court may consider whether the offender's plea was motivated by a willingness to facilitate the course of justice or was in recognition of the inevitable. It follows that a guilty plea entered in the face of a strong prosecution case should not be afforded as much weight as a plea entered in circumstances where the prosecution case is weak." 1. His Honour found that the applicant had good prospects of rehabilitation. He had no prior criminal record, a strong employment history, and sound family support. The applicant's expressions of remorse, given in a letter rather than by way of evidence before the sentencing court, were afforded no weight. 2. Returning to the issue of the early plea, his Honour said: "Early guilty plea. I have set forth the principles applicable to early guilty pleas in relation to Commonwealth offences. I propose to discount this sentence by 20% to reflect the utilitarian value of his early plea. I do not believe that the early plea should be taken as indicative of remorse." 1. A sentence of 12 years imprisonment with a non-parole period ("NPP") of 9 years was imposed. The sentence commenced on 17 August 2018 and will expire on 16 August 2030. The NPP will expire on 16 August 2027. The Submissions on the Application 1. The applicant's complaint is that, although sentence was imposed after the delivery by this Court of the judgment in Xiao v R (2018) 96 NSWLR 2; [2018] NSWCCA 4 ("Xiao"), and his Honour was referred to the decision by the Crown, he determined sentence on the basis of an amalgamation of the principles that applied prior to Xiao and those established by it. This approach was contrary to the common position of the Crown and applicant in submissions, in which both accepted that a discount of 25% was appropriate. It is argued that his Honour's approach in allowing a discount on sentence of 20% to reflect the utilitarian value of the early plea constitutes error. 2. The Crown contends that the sentencing judge did not err in the assessment made of the objective and subjective matters relevant to the plea of guilty for the purposes of s 16A(2)(g) of the Crimes Act 1914 (Cth). Pointing to the decisions of Kannis v R [2020] NSWCCA 79, Bae v R [2020] NSWCCA 35 and Huang aka Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70, the Crown submits that, whilst the timing of a guilty plea determines to a large extent the level of the utilitarian discount to be applied, s 16A of the Crimes Act 1914 provides some limitation to that general principle. Ultimately, the extent of any discount is a discretionary matter for the sentencing judge, here reduced because of the rejection by the sentencing court of the applicant's untested claims of remorse. Determination 1. The applicant had to be sentenced in accordance with Commonwealth sentencing law, as given in Division 2 of Part 1B of the Crimes Act 1914. Section 16A has particular relevance. It is in these terms: 16A Matters to which court to have regard when passing sentence etc.—federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Note: Minimum penalties apply for certain offences—see sections 16AAA, 16AAB and 16AAC. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (ea) if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (fa) the extent to which the person has failed to comply with: (i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or (ii) any obligation under a law of the Commonwealth; or (iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903; about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (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; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (ma) if the person's standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants. (2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: (a) when making an order—to impose any conditions about rehabilitation or treatment options; (b) in determining the length of any sentence or non‑parole period—to include sufficient time for the person to undertake a rehabilitation program. (2A) However, the court must not take into account under subsection (1) or (2), other than paragraph (2)(ma), any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates. (2AA) Subsection (2A) does not apply in relation to an offence against the following: (a) section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984; (b) sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999; (c) section 48 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986; (d) sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976; (e) section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987; (f) any other law prescribed by the regulations that relates to: (i) entering, remaining on or damaging cultural heritage; or (ii) damaging or removing a cultural heritage object. (2B) In subsection (2A): criminal behaviour includes: (a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and (b) any fault element relating to such a physical element. (3) Without limiting the generality of subsections (1), (2) and (2AAA), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order. (4) For the purposes of a reference in this Part to a family, the members of a person's family are taken to include the following (without limitation): (a) a de facto partner of the person; (b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 3; (c) anyone else who would be a member of the person's family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person's family. 1. The provisions of the New South Wales Crimes (Sentencing Procedure) Act 1999 (NSW) have no direct application to sentence proceedings for Federal offences. 2. What has come to be known as "Xiao error" frequently arises where State sentencing provisions are incorporated to some degree in a Commonwealth sentencing exercise. Such error has been considered on a number of occasions by this Court since the decision itself was handed down on 5 February 2018 by a bench constituted by Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J (as her Honour then was), and Bellew J. In Xiao, the principle that had previously been accepted in this State, that the utilitarian value of a plea of guilty could not be taken into account in mitigation of sentence when determining the penalty to be imposed for a Commonwealth offence, was held to be incorrect. The Court said, at [278]: "[…] it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing." 1. Whilst it is desirable for the extent of the discount to be specifically stated, there is no obligation on the sentencing judge to do so. 2. The background to Xiao, and the context of its resolution, has been helpfully considered in Baden v R [2020] NSWCCA 23 (per Bell P with whom Walton and Johnson JJ agreed) and in Bae v R [2020] NSWCCA 35 (per Johnson J, with whom Bell P and Walton J agreed). The explication of the issues in Bae v R in particular brings clarity to what can be an opaque area of sentencing principle, where the objective value of the utilitarian benefit of a plea of guilty can become confused with the subjective value of an offender's willingness to facilitate the course of justice, as the plea may evidence. 3. Johnson J's analysis of the authorities in Bae v R at [49]–[57] is particularly helpful, and justifies quotation in full: "[49] In Baden v R [2020] NSWCCA 23, Bell P (Walton J and myself agreeing) said at [15]–[16]: 15 The Xiao Court, comprising Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ, after a review of authorities which had either taken a different view to Tyler [ (2007) 173 A Crim R 458; [2007] NSWCCA 247] or questioned its correctness, relevantly held at [278] that: …in sentencing proceedings governed by s 16A [of the Crimes Act 1914 (Cth)], a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed. 16 In Cameron [(2002) 209 CLR 339; [2002] HCA 6], Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused's 'willingness to facilitate the course of justice' which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount. [50] In Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57, Beazley P (Bathurst CJ, Hoeben CJ at CL, McCallum and Bellew JJ agreeing) adopted the reasoning applicable to State offences in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, whilst noting the need to guard against the application of a 'norm' to Commonwealth offences. Beazley P said at [81]–[86]: 81 The appellant in this case pleaded guilty and is thus entitled to some discount for his plea. The utilitarian value of a guilty plea depends primarily upon the timing of the plea. In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) stated at [152]–[154]: [152] In my opinion, the appropriate range for a discount is from 10–25 percent. [153] The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. [154] There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i)The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii)The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 82 Spigelman CJ observed, at [155], that a discount at the top of the range would be restricted to pleas entered into at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. His Honour stated that a discount at the bottom of the range would be appropriate for late pleas, such as a plea entered into on the date fixed for trial. 83 Consistent with these observations, in the recent decision of Nash v Silver City Drilling (NSW) Pty Ltd v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, Basten JA (Hoeben CJ at CL and Walton J agreeing) stated that where a plea is entered on the first day fixed for trial, the utilitarian value of the plea must be 'severely reduced'. As N Adams J (Hoeben CJ at CL and Button J agreeing) observed in Zhao v R [2016] NSWCCA 179, a discount of 10 per cent is usually allowed for a plea entered in such circumstances. In Hart v A-G (NSW) [2016] NSWCCA 71, Davies J (Hoeben CJ at CL and Harrison J agreeing) rejected the applicant's submission that a discount of 10 per cent for the applicant's guilty plea was inadequate. In that case, the applicant first indicated to the court his intention to plead guilty on the first day of the trial and only indicated such an intention to the prosecution on the Friday before the trial was due to start on the following Monday. 84 In Thomson; Houlton , which involved a state offence, Spigelman CJ did not purport to be prescriptive as to the discount that should be given in any particular case. As Spigelman CJ stated, it was a matter for the discretion of the sentencing judge as to the discount to be applied. There is, however, an inevitable logic in his Honour's observations that the time at which a plea is entered is relevant to the discount to be applied. But as the portion of his Honour's reasons cited above reveal, it is not the only consideration and may not be a decisive consideration in the given case. Nor is the range suggested by his Honour the necessary limit of the upper and lower range, although it is a useful guide. It is not, however, to use the language of the High Court in Hili [ (2010) 242 CLR 520; [2010] HCA 45], a 'norm'. 85 The Court is presently concerned with sentencing for a federal offence. In Hili, the High Court held, at [13] and [44], that there was no 'judicially determined norm or starting point … for the period of imprisonment that a federal offender should actually serve in prison'. The so-called 'norm' of which the High Court was expressing its disapproval was the practice or convention in New South Wales of specifying, as the minimum period that an offender should serve in prison, a figure of 60 to 66 per cent of the term of imprisonment imposed. 86 In the present case, the plea was only entered on the day that the appellant's trial was listed for hearing. In addition, as the facts reveal, the case was not particularly complex. Accordingly, the utilitarian value of the plea was not high. Nonetheless, I consider that some discount ought to be allowed for the plea and that discount should be at the low end. In all the circumstances, I consider that an appropriate discount is 10 per cent for the appellant's guilty plea. [51] In Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70, this Court (in judgments of the same five-Judge Bench as in Xiao v R (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ)) stated (per Bellew J at [69]) that the timing of the plea, to a large extent, determines the level of the utilitarian discount to be applied, citing R v Thomson; R v Houlton at [160]. [52] In considering the nature of a discount for the utilitarian value of pleas of guilty, it is helpful to have regard to the decision of this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 where Howie J (McClellan CJ at CL and Simpson J agreeing) explained the concept of utilitarian value of a guilty plea concerning State offences. Howie J said at [32]–[33]: 32 It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application …: 1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116]. 2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154]. 3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the 'Ellis discount'; Lewins [2007] NSWCCA 189; S[2008] NSWCCA 186. 6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291. 7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178. 8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280. 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448. 10.An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129 11.The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313. 12.The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise. The last of these principles is derived from the present judgment and is included for completeness. 33 There also appears to be some looseness in the use of the expression 'a discount' that is apparent in the exchange between the prosecutor and the Judge set out above. Since Thomson and Houlton a 'sentencing discount' should be taken to mean a reduction in the otherwise appropriate sentence by a quantifiable amount due to a specific policy consideration. Such a discount is applied after the otherwise appropriate sentence has been determined. There are two sentencing discounts that have been identified: a discount for the plea of guilty and a discount for assistance. Where both these discounts apply they should be combined: R v SZ [2007] NSWCCA 19; 168 A Crim R 249 at [11]. The High Court has indicated that there should be limited use of 'arithmetical deduction' in determining an appropriate sentence: Markarian v R [2005] HCA 25; 228 CLR 357 at [39]. [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." 1. With those principles in mind, what the sentencing judge said in this matter as to the early plea of guilty, extracted at [29] and [31] above, can be considered. 2. His Honour correctly noted that the sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing for federal offences. That statement is in accordance with what was said by this Court in Xiao at [278]. 3. His Honour next observed, that a "discount for a guilty plea" could be obtained if it were established on balance that the plea "demonstrated an objective mitigation of genuine remorse, acceptance of responsibility, and / or willingness to facilitate the course of justice". Soon after, the sentencing judge remarked that the strength of the Crown case could be taken into account in assessing the "objective value of the guilty plea", and whether it reflected a willingness to facilitate the course of justice or simply recognition of the inevitability of conviction where the Crown case was strong (emphasis added in both quoted extracts). 4. In determining the discount that was to be allowed to the applicant in recognition for his plea of guilty on the sentence that would otherwise be imposed, his Honour said that a discount of 20% was an adequate acknowledgement of that aspect of the matter. That the discount was not the 25% that might ordinarily be allowed to reflect a plea of guilty entered prior to committal is explained by his Honour's conclusion that the plea could not be accepted as indicative of remorse or a wish to facilitate the course of justice. 5. Although I think it is at least possible that the sentencing judge simply misspoke when he set out the principles that applied with respect to the early plea, perhaps intending in each instance to refer to the subjective matter of remorse evidenced by the plea rather than the converse, as his Honour stated them the principles are not in accordance with Xiao. There is confusion between the objective value of the plea of guilty, and the question of its possible subjective value as evidence of remorse or willingness to facilitate the course of justice. Thus, there is error. 6. Error having been established, it falls to this Court to re-sentence the applicant, in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Evidence on Resentence 1. Against the prospect that his appeal may be upheld, the applicant read an affidavit from his solicitor, Mr Dowe, affirmed on 29 June 2020, and his own affidavit, affirmed on 25 June 2020. 2. Mr Dowe produced extracts from the records held by CSNSW which demonstrate that the applicant has maintained regular employment in custody, and is considered to have a good work ethic. He has participated in educational and vocational courses "with enthusiasm and respectfully". 3. The applicant deposed that he has been employed in custody as "a 3D designer" in a design and innovation team. He is enrolled in a product design course at the University of Technology Sydney with Corrective Services Industries facilitating the applicant's admission to the course because of the high quality of the work done by him and his team. 4. He has regular contact with his father and other locally based family, although via audio-visual link since the advent of the COVID-19 virus and the measures taken to prevent its spread. The only contact with family in Fiji is by telephone. 5. The applicant says that, in custody, he has seen the consequences of drug use, and the destruction drugs cause, and is "deeply sorry" for what he did. Sentencing Considerations 1. In accordance with s 16A(1) of the Crimes Act 1914, it is necessary to impose a sentence that is of a severity appropriate in all the circumstances of the offence. The maximum sentence is imprisonment for life or a fine, or both. The applicant does not suggest that a sentence other than one of imprisonment is available. 2. As the sentencing judge concluded, this was an objectively grave offence concerning an amount of cocaine which was in excess of 20 times the commercial quantity specified for that drug. Whilst the applicant was not the source of the cocaine imported into Australia, he was responsible for all aspects of the logistics connected with its shipment, including the packing of the illicit cargo, monitoring its progress towards Australia, and its intended receipt on arrival in Sydney. It is clear from the evidence of calculations he made concerning the weight of the consignment that the applicant was well aware of the amount of cocaine he shipped to Sydney. His involvement extended for a number of weeks prior to the shipment, and was current for the whole of the period particularised by the charge, between about 24 May 2018 and about 15 August 2018. His role was an international one, with the applicant despatching the drug from Fiji and travelling to Sydney to facilitate its receipt and distribution to "Bulla". The only reasonable inference is that the applicant, who had no criminal record and a well-paid job, involved himself in criminality of such high order because of the significant profit to be made. 3. Consistent with the conclusions of the sentencing judge, there is no reason to accept that the applicant was subservient to Bulla. He had a very significant role in the importation, and took a number of critical steps to effect the importation of in excess of 42 kilograms of pure cocaine. A quantity of cocaine of that order could do very significant harm to the Australian community. 4. The early guilty plea should be recognised by a discount of 25% on the sentence that would otherwise be imposed, to reflect the significant utilitarian value of the plea, entered prior to committal. 5. In common with the sentencing judge, I am not persuaded that the applicant is remorseful for his crime, as opposed to regretful at being apprehended for committing it. To Ms North, the applicant maintained that he had had no knowledge of the cocaine cargo, and had simply been reckless in taking up too quickly what seemed to be a good business proposition. Since these claims were not supported by any evidence, I would give them no weight; in any event, the agreed facts establish the falsity of the applicant's contentions in this regard. To his family, the applicant claimed to have little understanding of the seriousness of his conduct, a claim that also cannot be accepted from a man of (then) 29 years, who was employed in a role which required him to regularly travel internationally on business. 6. Whilst the applicant in his June 2020 affidavit asserts that he now understands the terrible consequences that illegal drugs can have, his remorse is still framed by reference to the harm caused to his loved ones. He does not acknowledge his role in the commission of this crime. I would give his assertion of remorse limited weight. 7. Although the absence of genuine and complete remorse can be inconsistent with an offender having good future prospects, the applicant's prior good character and his history of solid employment as, among other things, a skilled mechanic, point to his sound prospects of rehabilitation. The strong support of family in Australia and in Fiji, and the applicant's good conduct in custody and his efforts to work and educate himself contribute powerfully to that conclusion. 8. Although the requirement for specific deterrence is ameliorated to some extent by that conclusion, there remains a requirement that the applicant be punished for his crime. There is also a very important role for general deterrence to play in the determination of sentence. The necessity to impose sentences of unequivocal severity in relation to offences of this nature as the most efficient means available to the courts to enforce the law and deter others has been regularly stressed by superior courts: R v Tait and Bartley (1979) 24 ALR 473; (1979) 46 FLR 386 at 399. 9. The applicant enjoys good health and he was not found to have any mental illness or disorder when assessed by Ms North. He has no dependents who might be adversely affected by the sentence to be imposed. 10. I have had regard to the aspect of the matter which led the sentencing judge to allow a small reduction on sentence, and treated it in the same way. 11. Having considered all of these matters, the sentence that I would impose upon the applicant is not one which is less than that imposed by the sentencing judge. In accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW) I would dismiss the appeal. 12. IERACE J: I also agree with Wilson J's finding that the error contended for by the applicant has been made out, and with her Honour's reasons for so finding. On the question of resentence, I agree with Fullerton J's reasons and conclusion. 13. Fullerton J noted that it is generally accepted that an early plea of guilty for a Commonwealth offence will attract a discount of 25 per cent. In my view, this is particularly appropriate since the relevant sections of the Criminal Procedure Act 1986 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act") were amended by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) and the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW). These cognate Acts introduced a radically different procedure to committals in this state, which applies to both state and Commonwealth offences in which the court attendance notice was issued on or after 30 April 2018. If a plea of guilty is entered in the Local Court at any time prior to committal by a defendant, subject to certain age exceptions (s 25A(1)(b) of the Act), there is an assured reduction of 25 per cent in any sentence that would otherwise have been imposed for the utilitarian benefit of the plea, subject to two exceptions. The first is if the level of culpability "is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount": s 25F(2) of the Act. The second is if the sentencing court determines that the discount should not be applied, or should be reduced, because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender: s 25F(4) of the Act. 14. The policy objective was identified by the New South Wales Attorney General at the time, Mark Speakman, in his Second Reading Speech when introducing both amendment Bills: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 281. The Attorney stated: "These discounts are fixed, meaning that where they apply, the full discount must be given. This certainty about the discount that will apply is fundamental to creating a strong incentive for early guilty pleas." 1. Although the revised scheme has a significant advantage for those defendants who plead guilty while the matter is in the Local Court, it involves the loss to them of certain advantages that were enjoyed under the previous procedure. Pursuant to Ch 3, Pt 2 of the Criminal Procedure Act, the magistrate's role is supervisory; it no longer involves a determination of the sufficiency of the prosecution evidence to proceed to trial. Rather than receiving a full brief of evidence, a defendant is now served with a limited brief, not all of which is necessarily in admissible form, but deemed sufficient to enable meaningful negotiations between the parties, which are facilitated by a legislated sequence of steps and obligatory conferences to refine and explore the feasibility of alternative charges and pleas. 2. An integral consequence of the scheme is that a plea of guilty that is entered in the closing stage of the committal process attracts the same 25 per cent sentence discount as if it had been entered on the first appearance in the Local Court. However, although the committal procedure applies to both state and Commonwealth charges, a defendant who is charged with a Commonwealth offence is expressly excluded from the benefit of the assured 25 per cent sentence discount: s 25A(1)(a) of the Act. 3. In my opinion, when sentencing a Commonwealth offender who is committed pursuant to the current legislative scheme and who enters their plea at or towards the end of that process, it is appropriate to take into account the sequenced nature of the scheme and the participatory role expected of defendants during that process when determining the appropriate discount for the plea's utilitarian benefit. This would likely deliver a result on par with the statutory discount for state offences. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2020