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Chen v The Queen (Cth) [2021] NSWCCA 277

The offender was sentenced following a plea of guilty for an offence of conspiracy to import a commercial quantity of prohibited narcotic goods contrary to s 233B of the Customs Act 1901 (Cth). Offence related to 12.6kg of pure heroin. Re-sentence imposed 31 years imprisonment with 23 year non-parole period. Offender appealed on the basis that the Court did not have regard to the utilitarian value of the offender’s plea of guilty.  

Guilty Plea: Offender was sentenced prior to decision in Xiao. The question of whether there is a Xiao error is not answered simply by pointing to the absence of the phrase ‘utilitarian value’ in the resentencing decision. In re-sentencing the offender in 2003, the sentencing judge applied the principle in Thomas and Houlton by recognising the savings to the community consequent upon the plea of guilty in allowing a discount on sentence quantified at 10%. A discount was specifically quantified for the plea, which separately took into account the utilitarian value of a guilty plea. The amount awarded exactly corresponds to the quantum suggested in the guideline judgment as appropriate for a late plea. The 2003 decision both recognised and generously rewarded the utilitarian value of the offender’s guilty plea, notwithstanding the absence of the phrase in the judgment.  

Leave to appeal granted. Appeal dismissed.
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