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Xiao v The Queen [2018] NSWCCA 4

appeal against sentence — prohibited conduct by person in possession of inside information offences contrary to ss 1043A(1)(d) and 1311(1) of Corporations Act 2001 (Cth) — joint commission offence contrary to s 11.2A of Commonwealth Criminal Code — original sentence imposed 8 years and 3 months’ imprisonment with 5 year and 6 month non-parole period — during ASIC investigation offender permitted to travel to China to complete a doctoral thesis exam and required to return — offender failed to return and subsequently arrested in Hong Kong and extradited to Australia — guilty plea — s 16A(2)(g) — in providing for guilty plea to be taken into account in sentencing, legislature encouraged guilty pleas to provide evidence for remorse or contrition and to assist in administration of justice — in Federal sentencing proceedings, sentencing judge is entitled to take utilitarian value of guilty plea into account — to the extent that Tyler v The Queen, R v Chalmers [2007] NSWCCA 247 and subsequent line of cases provide to the contrary, they should not be followed — desirable for sentencing judge to specify discount — failure of sentencing judge to specify discount would not amount to error — sentencing judge in error in by not having regard to utilitarian value of guilty plea — antecedents — s 16A(2)(m) — limited recognition can be given to the position of a foreign national serving a sentence of imprisonment — offender’s immediately family in China and offender unable to talk to children for two years — sentencing judge in error by not considering this evidence — parity — where marked disparity of sentence between co-offenders giving rise to a justifiable sense of grievance, sentence should be reduced notwithstanding that reduced sentence not otherwise within the permissible range of sentencing options — appeal allowed — offender resentenced to 7 years’ imprisonment with 4 year and 6 month non-parole period
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