Jinde Huang aka Wei Liu v R

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgments of Beazley P and Bellew J in draft. I gratefully adopt Bellew J’s summary of facts and the applicant’s subjective circumstances.

2. [2]

   For the reasons given by Bellew J, I agree that ground 1 of the grounds of appeal has been made out.

3. [3]

   I would add the following. Beazley P has referred with approval to certain remarks of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237. While I do not disagree with these remarks, it is important to emphasise that a discount for the utilitarian value of a guilty plea can and should be given in appropriate cases, even where there is no subjective willingness to facilitate the course of justice. In the present case, as Bellew J points out, the sentencing judge did not take into account the utilitarian value of the guilty plea. The failure to do so meant that he was in error irrespective of whether this Court ultimately came to the view that the discount given adequately reflected both the applicant’s willingness to facilitate the course of justice and the utilitarian value of his guilty plea.

4. [4]

   In these circumstances, it is not necessary to determine whether ground 2 has been made out. In Xiao v R [2018] NSWCCA 4 (Xiao v R), this Court pointed out at [280] that it was desirable, in the interests of transparency, to disclose the actual percentage discount given, although failure to do so would not of itself amount to an error.

5. [5]

   Similar considerations suggest that it is desirable to specify the precise discount given, rather than specify a range as the sentencing judge did in the present case. Further, as pointed out by Howie J in R v Knight (2007) 176 A Crim R 338; [2007] NSWCCA 283 at [38], failure to specify the exact discount can mean that neither the offender nor the Court of Criminal Appeal can have confidence that it was applied to result in an appropriate discount to the sentence.

6. [6]

   Although, as presently advised, I am of the same view as Beazley P and Bellew J that it is erroneous to specify a range of discounts (R v Knight (2007) 176 A Crim R 338; [2007] NSWCCA 283 at [38]; R v Burton [2008] NSWCCA 128 at [121]; cf Ayache v The Queen [2013] NSWCCA 41 at [13]-[15]; JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [61]), it is unnecessary to finally determine whether, in the context of sentencing for a Commonwealth offence, specifying a range of discounts is erroneous.

7. [7]

   So far as resentencing is concerned, I agree with the sentence proposed by Bellew J for the s 307.1(1) offence for the reasons given by him and Beazley P. In relation to the sentence for the s 400.9(1) offence, I agree with the sentence proposed by Beazley P and with her reasons, particularly her emphasis on the need for general deterrence for offences of this nature.

8. [8]

   In the result, I agree with the orders proposed by Beazley P.

9. [9]

   Because somewhat divergent views have been expressed on the issues raised in this appeal, it may be of assistance to specify the approach which should be taken by sentencing judges in dealing with the utilitarian value of a plea of guilty in respect of Commonwealth offences having regard to the decision in Xiao v R and the judgment handed down in the present case:

   1. (1)

      Sentencing judges should take into account the utilitarian value of a plea in Commonwealth sentencing offences. Failure to do so constitutes error.

   2. (2)

      It is desirable that any discount given for the utilitarian value be specified. However, a failure to do so would not of itself constitute error.

   3. (3)

      It is an error to specify a range of percentage discounts as distinct from a specific percentage.

10. [10]

    BEAZLEY P: I have had the advantage of reading in draft the reasons of Bellew J. His Honour has helpfully set out the facts of the applicant’s offending conduct and the findings of the sentencing judge, including in respect of the applicant’s subjective case. That enables me to move immediately to the grounds of appeal. In this regard, I agree with his Honour in respect of ground 2, which means that the applicant falls to be resentenced by this Court: see Kentwell v R (2014) 252 CLR 601; [2014] HCA 37.

11. [11]

    However, I wish to make certain observations in respect of ground 1 and the sentence that I would, by way of resentence, impose on the applicant. I am able to state my reasons in respect of both matters relatively briefly.

12. [12]

    As Bellew J explains, this Court, in Xiao v R [2018] NSWCCA 4, determined that when sentencing for a Commonwealth offence pursuant to the Crimes Act 1914 (Cth), s 16A, a sentencing judge is entitled to take into account the utilitarian value of a plea of guilty. In the present case, the sentencing judge allowed a discount in respect of the applicant’s pleas of guilty for both offences. In determining the extent of the discount that was appropriate, his Honour had regard to the time at which the plea was entered in respect of each offence and the fact that the applicant’s decision to plead guilty was in the face of a strong Crown case. In this respect, the applicant’s decision to plead guilty to the offences was to be seen as a recognition of the inevitable. There was no error in his Honour taking those factors into account.

13. [13]

    Nor was there any error in his Honour determining that, as the pleas were taken to be a recognition by the applicant of the strong Crown case, the discount for the pleas should be modest. That finding was an evaluative judgment of his Honour based on the evidence. For any challenge to that evaluation to be successful, the applicant had to demonstrate error on the bases that apply in respect of a discretionary decision, as stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505: see Yuksel v R [2010] NSWCCA 65; Ghobrial v R [2012] NSWCCA 221. No such error has been demonstrated. For that reason, I would reject ground 1(b).

14. [14]

    There is a separate question as to whether the sentencing judge took into account the utilitarian value of the pleas. His Honour, at ROS 2, stated that the pleas of guilty had “to an extent facilitate[d] the course of justice”. Given the challenge raised by ground 1(a), it is salient to refer to the conceptual difference between facilitating the course of justice and the utilitarian value of a plea and the extent to which both considerations are required to be reflected in the sentence imposed or, to put it another way, in the discount allowed for the plea.

15. [15]

    These matters were the subject of comment in Director of Public Prosecutions (Cth) v Thomas (2016) 347 ALR 275; [2016] VSCA 237, in remarks with which I agree. There the Court stated, at [7]:

16. [16]

    In the case before the Court, I agree with Bellew J that as the sentencing judge made no reference to the utilitarian value of the plea, it is likely that his Honour did not take it into account and thereby erred. Having said that, the question is whether that omission had any impact on the appropriate discount for the pleas. That is the subject of the applicant’s challenge in ground 1(c). However, it is not necessary to dwell on that question, as I agree with Bellew J that ground 2 of the appeal should be allowed. In that ground, the applicant contended that the sentencing judge erred in specifying a range between which the discount for the plea fell. As I consider ground 1(a) and ground 2 should be allowed, the applicant falls to be resentenced by this Court.

17. [17]

    Bellew J did not consider it necessary to determine ground 3 of the appeal, which contended that the sentence imposed for the s 307.1(1) offence of importing a commercial quantity of a border controlled drug, as well as the effective total sentence, was manifestly excessive. However, it is relevant to consider the parties’ submissions on this ground of appeal, as they are relevant to the question of the appropriate sentence this Court should impose in the exercise of its resentencing discretion.

18. [18]

    The applicant referred the Court to the sentences imposed in a series of cases said to be relevantly comparative to the circumstances in this case. The Crown accepted that these cases, in which terms of imprisonment of between 15 years and 17 years, 10 months were imposed, indicated a “yardstick” for sentences for similar offending conduct. The Crown also accepted that the sentence imposed by the sentencing judge, whilst severe, was “within range” for similar offending conduct.

19. [19]

    It is not necessary in this case to revisit the principles that govern the use of sentencing statistics or sentences imposed in comparable cases. They are well known. It may also be accepted, as the Crown acknowledged, that the sentence imposed by the sentencing judge was at the “top of the range” of sentences imposed for similar offending conduct. This was understandable given that there was little to be said of the applicant’s subjective circumstances that warranted leniency.

20. [20]

    There was additional evidence before the Court to which Bellew J refers at [68] to the effect that the applicant is seeking to make constructive use of his time in custody. That evidence is a hopeful indication that the applicant has some prospects of rehabilitation and I consider that is relevant to the sentence to be imposed on resentence. For that reason, I agree with the sentence proposed by Bellew J in respect of the s 307.1(1) offence and the discount that his Honour proposes for that offence.

21. [21]

    However, I consider that the sentence imposed by the sentencing judge in respect of the s 400.9(1) offence was the appropriate sentence on the assumption that a 10 per cent discount was applied. The offence is a serious offence and questions of general deterrence are of particular importance. Apart from the recent indications that the applicant has some positive prospects of rehabilitation, none of his subjective circumstances called for any particular leniency. I have taken the applicant’s prospects of rehabilitation into account in relation to the s 307.1(1) offence and do not consider that those prospects call for any further consideration in sentencing on this charge. Accordingly, I would start with a sentence of 2 years, 6 months, to which I would apply a discount of 10 per cent. The sentence to be imposed is therefore 2 years, 3 months. I otherwise agree with Bellew J’s assessment of the appropriate discount to be applied and that there should be accumulation, as well as with the degree of accumulation proposed by his Honour.

22. [22]

    Accordingly, I propose the following orders:

23. [23]

    HOEBEN CJ at CL: I agree with Bellew J that Ground 1(a) is made out for the reasons his Honour has stated. I also agree with the additional reasons of Bathurst CJ and Beazley P for reaching that conclusion.

24. [24]

    I agree with Bellew J for the reasons given by his Honour that Ground 2 has been made out. On that issue, I also agree with the additional reasons by Bathurst CJ, albeit expressed somewhat tentatively. I agree with the observations by McCallum J that it is permissible to specify a discount in such terms as are necessary to avoid sentencing in weeks and days, provided that the approach adopted affords certainty and transparency.

25. [25]

    In relation to re-sentencing, I agree with the sentence proposed by Bellew J for the s 307.1(1) offence for the reasons given by his Honour and Beazley P. In relation to the sentence for the s 400.9(1) offence, I agree with the sentence proposed by Beazley P and with her Honour’s reasons.

26. [26]

    McCALLUM J: I agree with Bellew J that ground 1(a) is made out, for the reasons his Honour has stated. As to ground 2, I agree with Bellew J that, in the circumstances of this case, the specification of a range between which the discount fell produced such uncertainty as to amount to error. To be clear, in my view the error lies in the uncertainty produced in the present case owing to the length of the sentence and the quantum of the range. In my view, however, it is permissible to specify a discount in such terms as are necessary to avoid sentencing in weeks and days, such as a discount of “about x%”, or a discount that is said to have been rounded up for that purpose, or a discount expressed in years or months rather than as a percentage, provided always that the approach adopted affords certainty and transparency. I agree with the orders proposed by Bellew J.

27. [27]

    BELLEW J: On 29 March 2016 Jinde Huang aka Wei Liu (the applicant) appeared before the District Court for sentence in respect of two offences contrary to the Criminal Code 1995 (Cth) (“the Code”). The first, to which the applicant had previously pleaded guilty in the Local Court, was in the following terms:

28. [28]

    The maximum penalty for that offence is life imprisonment and/or a fine of $1,275,000.00.

29. [29]

    The second, to which the applicant had pleaded guilty immediately before the commencement of his trial, was contained in a separate indictment and was in the following terms:

30. [30]

    The maximum penalty for that offence is 3 years imprisonment and/or a fine of $30,600.00.

31. [31]

    In respect of the first offence the applicant was sentenced to imprisonment for 15 years commencing on 18 December 2014 and expiring on 17 December 2029. In respect of the second, he was sentenced to imprisonment for 2 years and 3 months commencing on 18 December 2013 and expiring on 17 March 2016. The total sentence was one of 16 years imprisonment. The sentencing judge specified a single non-parole period of 11 years imprisonment, to expire on 17 December 2024.

32. [32]

    The applicant now seeks leave to appeal against those sentences on the following grounds:

    1. (1)

       The learned sentencing judge erred in his assessment of the significance of the applicant’s pleas of guilty and the discounts allowed by:

    2. (2)

       The learned sentencing judge erred in specifying a range between which the discount for the pleas of guilty fell.

    3. (3)

       The sentence imposed for the importation offence (s 307.1 offence), and the effective total sentence, are manifestly excessive.

The facts of the offending

1. [33]

   The sentence judge found the facts of the applicant’s offending to be as follows (commencing at ROS 2):

The findings of the sentencing judge

1. [34]

   In respect of the offending contrary to s 307.1 of the Code, the sentencing judge found (at ROS 27) that the role performed by the applicant included:

2. [35]

   His Honour found (at ROS 27) that although the applicant reported to others, his role was nevertheless a managerial one, and was carried out at a level which he described as “perhaps not quite to mid-level but a management role nevertheless with authority to attend to critical arrangements and instruct others in the execution of the enterprise”. His Honour concluded (at ROS 28) that the enterprise was a “highly organised criminal activity” and that although the quantity of the drug was not determinative of the applicant’s criminality, it was nevertheless significant. He also concluded (at ROS 29) that the applicant was engaged in the offending for financial reward. His Honour did not accept that in offending as he did, the applicant was solely concerned with the discharge of gambling debts. He concluded that even if that this had been the case it would not have been a factor in mitigation.

3. [36]

   In respect of the offending contrary to s 400.9 of the Code, his Honour found (at ROS 28) that the amount of money which had been remitted to China reflected the extent to which the applicant was trusted by those with whom he was working.

4. [37]

   None of his Honour’s findings as to the applicant’s role in the commission of the offences were challenged before this Court.

The applicant’s subjective case

1. [38]

   A report of Dr Katie Seidler, Clinical and Forensic Psychologist, was tendered in the applicant’s case on sentence. On the basis of the history provided to her, Dr Seidler reported that the applicant was born and raised in Guangzhou in southern China, and was the elder of two sons. He had a stable and supportive childhood environment and was not exposed to any notable developmental risks. Dr Seidler reported that the applicant completed his secondary education to an above average standard, and thereafter completed a course in internal refurbishment at a Technical College. The applicant admitted to Dr Seidler that since arriving in Australia he had been working illegally to support himself. He also told her that he had a history of problem gambling which he said commenced when he was in China, and which worsened considerably when he came to Australia.

2. [39]

   In terms of the offending, the applicant told Dr Seidler that he met his co-offenders and their criminal associates at a casino and that over time, against a background of increasing personal debt, he was offered money to become involved “in certain jobs on their behalf”. He told Dr Seidler that the offences to which he had pleaded guilty represented some of those “jobs” and that “apparently this was the first time that drugs had been involved”. He said that he did not initially realise that illicit drugs were involved although he soon became suspicious and frightened, and concerned about the possible consequences for himself.

3. [40]

   The sentencing judge concluded (at ROS 25) that in the absence of sworn evidence from the applicant to support the various statements recorded by Dr Seidler, her report did little to advance his case, and that there was an absence of any direct explanation from the applicant as to why he had engaged in the offending. In particular, his Honour said:

4. [41]

   His Honour found (at ROS 30) that there was no evidence of any genuine remorse on the part of the applicant, other than his pleas of guilty. He also found that other than what was contained in the report of Dr Seidler, there was no evidence as to the applicant’s prospects of rehabilitation.

The findings of the sentencing judge

1. [42]

   In terms of the applicant’s pleas of guilty, and specifically in respect of the timing of those pleas, the sentencing judge said the following (commencing at ROS 2):

2. [43]

   Although his Honour indicated that he would further explain the path of reasoning that he had adopted in order to arrive at the specified discounts, he said only this (at ROS 30):

Consideration

1. [44]

   The present application for leave to appeal was heard at the same time as Xiao v R [2018] NSWCCA 4 (“Xiao”), in which this Court considered whether, in sentencing a federal offender, it is relevant for a sentencing judge to take into account the utilitarian benefit of a plea of guilty. The Court concluded (at [278]) that in sentence proceedings governed by s 16A of the Crimes Act 1914 (Cth) (“the Act”), a sentencing judge is entitled to take such utilitarian benefit into account. The Court concluded (at [281]) that the sentencing judge in that case had erred in failing to do so.

2. [45]

   The observations of the sentencing judge in the present case regarding the timing of the applicant’s pleas of guilty, and the discounts to be applied, are set out at [42]-[43] above. His Honour concluded that although the applicant’s pleas demonstrated a willingness to facilitate the course of justice, any discount should be “relatively modest”.

3. [46]

   His Honour did not refer to the utilitarian value of those pleas. In my view, the only available conclusion is that his Honour failed to have regard to that factor. In doing so, his Honour fell into a similar error as that found by this Court in Xiao. It follows that ground 1 is made out.

4. [47]

   Error having been found, the applicant must now be resentenced. It is therefore strictly unnecessary to consider grounds 2 and 3, the latter of which asserts that sentences imposed were manifestly excessive. However it is appropriate to consider ground 2 which raises a discreet issue.

Ground 2 – The learned sentencing judge erred in specifying a range between which the discount for the plea of guilty fell

1. [48]

   As set out at [42]-[43] above, the sentencing judge indicated an intention to allow a discount of “between 5% and 10%” in respect of the sentence to be imposed for the offence contrary to s 409.1 of the Code, and a discount of “between 10% and 15%”.

2. [49]

   In Xiao, this Court observed (at [280]) that s 16A(2)(g) of the Act neither requires nor prohibits the specification of a discount. It was also observed that whilst there is no obligation upon a sentencing judge to so specify, and whilst a failure to do so will not of itself amount to error, it is desirable, in the interests of transparency, that any discount applied be specified.

3. [50]

   In R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 the sentencing judge had concluded that the respondents were entitled to a discount for the utilitarian value of their respective pleas of “something in the vicinity of 10 to 15 percent”. Howie J (with whom McClellan CJ at CL and Hidden J agreed) said at [38]:

4. [51]

   In R v Burton [2008] NSWCCA 128 the sentencing judge had expressed the discount for the respondent’s pleas of guilty as “something in the range of perhaps 15% or a little higher”. Johnson J (with whom Campbell JA and Grove J agreed) applied (at [121]) the observations of Howie J in Knight. Both of these authorities were relied upon by senior counsel for the applicant in the present case in support of ground 2.

5. [52]

   The Crown submitted that whilst it was “preferable” that any discount be expressed “with as much certainty as is possible”, a failure to do so did not necessarily lead to a conclusion that error was made out. In support of that proposition, the Crown’s written submissions cited two authorities.

6. [53]

   The first was Ayache v R [2013] NSWCCA 41 where the sentencing judge recorded that he had reduced the applicant’s sentence “by about 25%”. Rothman J (with whom McClellan CJ at CL and Adamson J agreed) rejected a submission that the use of that expression by the sentencing judge amounted to error. His Honour expressed the view (commencing at [14]) that in light of the fact that sentencing is a process of intuitive synthesis and not a mathematical exercise, the proposition that there must be mathematical precision of the kind for which the applicant in that case had contended could not be supported. It is apparent the Court was not referred to the decisions in Knight or Burton.

7. [54]

   The second authority relied upon by the Crown was JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528. In that case the sentencing judge had concluded that the discount should “sit somewhere between ten and fifteen percent…” R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed) rejected the proposition that the sentencing judge had erred by failing to precisely state the amount of the discount that he had applied. His Honour concluded (at [61]) that the sentencing judge was not required quantify, with absolute precision, the extent of the discount allowed, and cited the decision in Ayache as authority for that proposition. Again, it is apparent that the Court was not taken to the earlier decisions in Knight and Burton.

8. [55]

   The law strongly favours transparency in the sentencing process: Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ. In terms of the specification of a discount to reflect the utilitarian value of a plea of guilty, such transparency is, in my view, best achieved by precision in the expression of the discount. As Howie J pointed out in Knight, expressing a discount in other than precise terms, and in terms of a range, has the capacity to place this Court in some difficulty in determining whether, in a particular case, a discount was applied at all.

9. [56]

   The sentencing judge in the present case did not specify, in respect of either offence, the starting point which he had adopted, nor did he state, other than in terms of a range, the respective discount that he applied. As the written submissions of the applicant point out, this is of particular significance in the case of the sentence imposed for the offence contrary to s 307.1(1) of the Code. Depending upon whether the discount applied was 10% or 15% (or perhaps somewhere in between) the starting point was between 16 years and 8 months and approximately 17 years and 8 months. The significant difference in that range will be self-evident.

10. [57]

    The circumstances of the present case may be distinguished from those in Ayache. It was accepted by both parties in that case that the applicant had entered his plea of guilty at the earliest opportunity. That fact was expressly acknowledged by the sentencing judge. In these circumstances Rothman J took the view that there was nothing to suggest that the discount applied was less than 25%. In the present case, where the sentencing judge may have started, and what discount he actually applied, remain obscure.

11. [58]

    Similarly in JM, the circumstances were such that counsel for the applicant on sentence had accepted that the discount would be in a certain range. R A Hulme J held there could be no legitimate complaint by the applicant about not being afforded a discount of greater than 10%, given the time at which his plea was entered.

12. [59]

    In my view the lack of precision in the specification of the discounts in the present case necessarily leads to the conclusion that this ground is made out. Sentencing judges should, in my view, express discounts with precision so as to overcome uncertainty of the kind which has arisen in the present case.

13. [60]

    For all of these reasons in my view, ground 2 is made out.

Re-sentence

1. [61]

   As error has been found, this Court must determine an appropriate sentence in the independent exercise of its discretion: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [43]. In doing so, the Act mandates that to the extent that they are applicable, the factors in ss 16A(2)(a)-(p) are to be taken into account.

2. [62]

   The written submissions filed on behalf of the applicant relied upon the sentences imposed in a large number of cases in which various offenders had been sentenced for similar offending and had been sentenced to a term or terms of imprisonment less than the total sentence imposed on the applicant. I have had regard to those cases although it is necessary to bear in mind that sentencing requires consistency in the application of principle, as opposed to numerical equivalence: Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [48]-[50].

3. [63]

   The nature and circumstances of the applicant’s offending, as determined by the sentencing judge in respect of each offence, have already been set out: s 16A(2)(a). As previously noted, no challenge was made to any of his Honour’s factual findings. The offending contrary to s 400.9 of the Code involved the applicant transferring a total of more than $1.8 million to persons in China over a period of approximately 18 months. As the sentencing judge pointed out, there is no evidence which enables any determination to be made as to the nature of the crime(s) of which those amounts transferred were the proceeds. Notwithstanding that, it remains the case that the amount of money transferred, and the extended period over which such transfers took place, render the offending serious.

4. [64]

   Likewise, the seriousness of the offending contrary to s 307.1(1) of the Code is self-evident. The applicant occupied a managerial role in an enterprise centering upon the importation of a quantity of a prohibited drug which was substantially in excess of the prescribed commercial quantity. The seriousness of that offending can be gauged by the fact that the Parliament has seen fit to impose a maximum sentence of life imprisonment.

5. [65]

   In the case of each offence, general deterrence is an important consideration on sentence: s 16A(2)(ja).

6. [66]

   The reason(s) for the applicant’s offending remain largely unexplained. Like the sentencing judge, in the absence of evidence from the applicant I regard the report of Dr Seidler as being of limited value in terms of any assessment of the circumstances of the applicant’s offending, or his subjective case. This Court has repeatedly expressed the view that a cautious approach must be taken in assessing the reliability of statements of the kind contained in Dr Seidler’s report: see R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58] per Smart AJ (Spigelman CJ and Simpson J (as her Honour then was) agreeing); Hall v R [2017] NSWCCA 260 at [48] per Wilson J (Payne JA and McCallum J agreeing).

7. [67]

   There is no dispute that the applicant is a person of prior good character. Dr Seidler’s report did not diagnose any relevant medical condition: s 16A(2)(m).

8. [68]

   As noted at [41] above, the sentencing judge was unable to make any determination as to the applicant’s prospects of rehabilitation. In the event that this Court came to re-sentence, the applicant relies upon his affidavit of 11 July 2017, as well as that of his solicitor, Bryan Dowe, of 10 July 2017. That evidence establishes that the applicant has been gainfully employed in custody and has undertaken courses in English and food handling. The case notes annexed to the affidavit of Mr Dowe speak in positive terms of the applicant’s skills, initiative and level of responsibility. Generally speaking, he appears to be using his time in custody productively, and in a way which points positively towards his rehabilitation: s 16A(2)(n) That said, and but for his pleas of guilty to each offence, there is no evidence of contrition: s 16A(2)(f).

9. [69]

   In terms of the pleas of guilty (s 16A(2)(g)), the applicant was arrested on 18 December 2013. On 26 November 2014 he pleaded guilty to the offence contrary to s 307.1(1) of the Code and was committed to the District Court for sentence. The Crown’s written submissions before this Court acknowledged that there is no evidence as to why the proceedings remained in the Local Court for such a long period of time. It was accepted by the Crown before the sentencing judge that the brief of evidence was not served until 9 July 2014. Although the plea of guilty to that offence was not entered at the first available opportunity, it was certainly entered at an early stage, and at a time when the matter was still before the Local Court. The timing of the plea, to a large extent, determines the level of the discount to be applied: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160]. In terms of this offence I would start with a sentence of 16 years and 4 months imprisonment, to which I would apply a discount of 20% to recognise the utilitarian value of the applicant’s plea of guilty.

10. [70]

    The position with respect to the plea of guilty which was entered to the offence contrary to s 400.9(1) of the Code is somewhat different. For a long period of time, the applicant maintained a plea of not guilty and was committed to the District Court for trial. His plea of guilty was entered effectively one business day before the commencement of that trial. In terms of this offence, I would start with a sentence of 1 year and 8 months, to which I would apply a discount of 10% to reflect the utilitarian value of the applicant’s plea of guilty.

11. [71]

    There should be some small degree of accumulation between the two sentences, to reflect the fact that the offending was separate.

ORDERS

1. [72]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Sentences imposed in the District Court of NSW on 29 March 2016 quashed.

   4. (4)

      In lieu thereof: