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Kao v The Queen [2020] NSWCCA 38

appeal against sentence — import a commercial quantity of border controlled drug offence contrary to s 307.1 of the Commonwealth Criminal Code — offence relates to over 10kg of pure heroin — original sentence imposed 8 years’ imprisonment with a 5 year non-parole period — guilty plea — s 16A(2)(g) — Xiao error established — 25% discount for utilitarian value of plea of guilty to be allowed on resentence — re-sentence — nature and circumstances of the offence — s 16A(2)(a) — “non-exculpatory” duress was affirmatively accepted by the sentencing judge to have played an important role in the genesis of this offending, and an important role in mitigation of sentence — hardship to the offender — at time of imposition of sentence, offender knew no English — offender’s time in custody would be isolated and difficult for that and other reasons — has been attacked multiple times in prisons — offender slashed themselves, not in suicide attempt, but effort to avoid being incarcerated in particular gaol — offender’s family only been to visit them on one occasion during 5 year incarceration — rehabilitation — s 16A(2)(n) — offender developed limited English during years in custody, has no infringements against prison discipline, worked throughout sentence being highly thought of in number of roles, undertaken many courses in custody in effort at rehabilitation — here, very powerful subjective features including the sorry events that have occurred in custody since imposition fo sentence must be balanced against notably significant quantity of drug sought to be imported, the crucial, long-standing and multi-faceted role played by offender and obvious sophistication of the criminal enterprise — imposed 7 years’ and 6 months imprisonment with a 4 year and 8 month non-parole period — but for guilty plea, head sentence would have been 10 years imprisonment
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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