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Kwan v R; Kwok v R [2020] NSWCCA 313

The offenders were convicted following a plea of guilty of one count of attempting to possess a commercial quantity of a border-controlled substance, contrary to ss 307.5(1) and 11.1(1) of the Commonwealth Criminal Code. The offenders were originally sentenced to 20 years’ imprisonment with a non-parole period of 13 years. The offence related to 33.1565 kilograms of pure methamphetamine. The offenders appealed on a single ground that the sentencing judge did not have regard to the utilitarian value of the offenders’ plea of guilty.  

Guilty Plea: The sentencing judge allowed no discount for the utilitarian value of the plea of guilty, as the decision of Xiao v R had not yet been determined. Recognition of the strength of the Crown case in the sentencing judgment and an acknowledgement of willingness to facilitate justice are not relevant to the utilitarian value of the plea. The assessment of the utilitarian value of the plea is predominantly governed by the timing of the plea. As the offenders entered pleas of guilty at committal, the Crown accepted that each plea warranted a 25% discount. The sentencing of the offenders may be undertaken jointly with differences in respective cases identified where applicable. The appeal judge found a lesser sentence should be imposed having regard to all relevant objective and subjective factors and after applying the 25% discount for the utilitarian value of the offenders’ plea of guilty.  

Offenders were sentenced to 16 years’ imprisonment with a 10 year non-parole period.
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