Kao v R [2020] NSWCCA 38

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

Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/201775 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 21 July 2017 Before: Craigie SC DCJ File Number(s): 2015/201775