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Kuo v The Queen; Huang v The Queen; Shih v The Queen [2018] NSWCCA 270

appeal against sentence by three co-offenders heard by same court, fourth co-offender not subject of appeal — each charged with attempting to possess an unlawfully imported substance, the substance being a border controlled drug, namely methamphetamine offence contrary to s 307.5(1) of Commonwealth Criminal Code — offences related to attempted possession of 142kgs of methamphetamine — original sentence imposed 27 years’ imprisonment with 18 year non-parole period for Offender 3, and 22 years’ imprisonment with 14 year and 6 month non-parole period for Offenders 1 and 2 — Offender 1 — guilty plea — s 16A(2)(g) — sentencing judge did not take into account utilitarian value of guilty plea — late plea after fully contested committal proceedings — even when one takes into account utilitarian value, discount for plea would be modest, about 10 to 15 percent — nature and circumstances of offence — s 16A(2)(a) — objective seriousness — difficulty to find guidance as to how to deal with particular facts which involve large importation of prohibited drug — offending by Offender 1 would be well above mid-range of offending, but certainly not approaching the worst category of offending — Offender 1 was not a principal, albeit an important member of drug importation syndicate — danger in a matter of this kind is that sentencing judge, to some extent, can be overwhelmed by sheer quantity of drug sought to be imported — lesser sentence warranted in law for Offender 1 — Offender 2 — parity — similar position in hierarchy of drug enterprise as Offender 1 — overall sentence of fourth co-offender exceeded sentence imposed on Offender 2, because fourth co-offender found guilty of two additional offences — sentence seems to have resulted from sentencing judge’s assessment of hierarchy that involved Offender 3 at apex and fourth co-offender at the bottom — fourth co-offender’s role was considerably more significant than that of Offenders 1 and 2 — fourth co-offender was at top of Australian hierarchy — taking that matter into account and also the other matters in relation to Offender 1, consider that a lesser sentence is warranted in law for Offender 2 — Offender 3 — guilty plea — s 16A(2)(g) — sentencing judge erred in failing to take account utilitarian value of guilty plea — necessary for court to exercise afresh sentencing discretion — unnecessary to come to any firm conclusion in relation to ground asserting manifest excess other than to say the court would, in circumstances of this case, have imposed a sentence significantly lower than imposed on Offender 1 — unnecessary to come to any final conclusion in relation to ground asserting disparity — good deal of merit in Offender 3’s case — bear in mind sentence imposed on fourth co-offender and that to be imposed on Offenders 1 and 2 — taking into account Offender 3’s role in importation, magnitude of importation, particular personal circumstances including likely hardship in custody, absence of any serious criminal history and guarded assessment that Offender 3 had some prospects for rehabilitation upon deportation at end of very long sentence — Offenders 1 and 2 resentenced to 19 years’ imprisonment with 12 year non-parole period — Offender 3 resentenced to 22 years’ imprisonment with 14 year non-parole period
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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