The Xiao Error: Failing to Discount for Guilty Pleas in Commonwealth Cases

Print Friendly, PDF & Email

By Paul Gregoire and Ugur Nedim

On sentencing Torikai Walsh, NSW District Court Judge Clive Jefferies accepted that the 27-year-old Coffs Harbour local had acted under duress, when facilitating the importation of cocaine, which was secreted within consignments in various “sophisticated ways”.

Walsh had become involved in the drug importation ring after being threatened with violence towards himself and his family by higher up members in the syndicate to whom he owed significant money, as a result of drug and gambling debts.

Although the kind of duress Walsh had been under was found to be non-exculpatory, which means that while it could be considered a mitigating factor, it couldn’t serve as his complete defence.

It was found that the finances Walsh received out of the arrangement exceeded what he’d owed.

Between May 2012 and December 2013, Walsh was involved in an importation racket, which saw him send over half a million dollars in payments overseas in exchange for consignments of cocaine.

Over a kilogram of the drug was intercepted by Australian police. Nineteen consignments were seized, while another 42 made it through.

And according to Judge Jefferies, Walsh played an “integral” role in the operation, which also involved him arranging the collection of the consignments, which the offender then passed on to those overseeing the network.

Guilt uncontested

Following the interception of the drugs, Walsh was arrested on 5 December 2013. He subsequently entered a plea of guilty in relation to a single count on 13 October 2015. And the offender went before the NSW District Court for sentencing on 14 March 2016.

Walsh was charged with and pleaded guilty to one count of conspiring to import a marketable quantity of a border controlled drug, contrary to subsections 307.2(1) and 11.5(1) of the Criminal Code Act 1995 (Cth).

Subsection 307.2(1) of the Criminal Code contains the offence of importing a marketable quantity of a border controlled drug, which carries a maximum penalty of 25 years behind bars and/or a fine of $1,110,000

Subsection 11.5(1) of the Code contains the offence of conspiracy. A person who conspires to commit an offence carrying a maximum penalty of more than 12 months prison time or a fine of 200 penalty units or more, is guilty of conspiring to commit that offence and subject to its penalties.

On 21 December 2016, Judge Jeffries sentenced Walsh to 9 years behind bars, with a non-parole period of 5 years.

The Xiao error

Walsh appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 14 July this year, after being granted an extension of time to challenge it.

The appeal was based on the ruling in Xiao versus R, which was handed in February 2018 – 14 months after Walsh was sentenced.

A single ground of appeal was argued. This involved there being a “Xiao error” in sentencing, as the full worth of Walsh’s guilty plea had not been factored into his sentence, because its utilitarian value wasn’t considered.

Prior to Xiao, 2007’s Tyler v R was the authority on this matter. It found that the utilitarian value of a guilty plea should not be factored into sentencing when it comes to federal offences.

The utilitarian value of a guilty plea is the court time and costs that it saves. A plea of guilt cuts down on the money spent and the amount of time involved in running a trial. And the earlier a guilty plea is entered the more value it has, due to the added savings in terms of time and funding.

In October 2017, laws were passed in NSW to regulate the common law practice of applying discounts for guilty pleas. Since then, section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the mandatory discounts that apply due to the utilitarian value of guilty pleas.

A guilty plea at the time of a committal hearing results in a 25 percent discount to a prison sentence. If the plea is made within 14 days of the first day of trial, it warrants a 10 percent discount. While a guilty plea at any later stage, results in a 5 percent reduction in time.

In terms of at the federal level, subsection 16A(2)(g) of the Crimes Act 1914 (Cth) stipulates that in sentencing, the court must take into account “if the person has pleaded guilty to the charge in respect of the offence”.

In Xiao, the full bench of the NSWCCA found that in relation to the federal Crimes Act, “the legislature intended the encouragement of guilty pleas not only to provide evidence for remorse or contrition but to assist in the administration of justice”.

Therefore, a sentencing judge “is entitled to take the utilitarian value of a plea into account in sentencing”. And their Honours also found that while there’s no obligation for a sentencing judge to specifically outline the discount applied, it’s preferable for them to do so.

A little less time

In sentencing Walsh, Judge Jefferies had considered 2012’s Lee v R, in which Justice Clifton Hoeben had found that a guilty plea can be taken into account as showing an offender’s willingness to facilitate justice, but not on the basis of hearing costs saved. Xiao found this to be in error.

On appeal, the Crown conceded that the judge had been mistaken when sentencing Walsh, based on the subsequent ruling in Xiao. And following from that concession, the NSWCCA judges set out that it was then up to them to consider whether a lesser sentence was warranted.

Justice Helen Wilson outlined in the full findings that resentencing was appropriate. And the court took into consideration the gravity of the offence, Walsh’s behaviour during his time in prison and the general deterrence that his sentence should have in preventing others from offending.

On 3 August this year, her Honour ordered that the 2016 sentence be quashed, and that Walsh be sentenced to 9 years prison time, with a non-parole period of 4 years and 9 months.

NSWCCA Justice Mark Ierace and NSW Supreme Court Chief Judge in Equity Julie Ward both agreed with the orders.

Author Image

About Sydney Criminal Lawyers

Sydney Criminal Lawyers® is Australia's Leading Criminal Defence Law Firm, Delivering Outstanding Results in All Australian Courts. Going to Court? Call (02) 9261 8881 for a Free Consultation.

Leave a Comment