Xiao v R [2018] NSWCCA 4
Xiao v R [2018] NSWCCA 4 · Read the judgment on AustLII
Catchwords: Commonwealth Sentencing – discount for plea of guilty – relevance of the utilitarian value of the plea
Overturning a NSW authority which has stood for more than a decade, the Court of Criminal Appeal (‘CCA’) has determined that when sentencing for Commonwealth matters, it is permissible to take into account the utilitarian value of a plea of guilty.
The applicant was charged with two offences of insider trading. He was a managing director of a mining company, the parent company of which decided to make certain takeover bids. Because of his position in the company he learned about the takeover bids before they were public knowledge. Using that inside information, he traded shares with his wife’s account, and made an agreement with another person for that person to make purchases on behalf of himself and others. He made profits on both investments. He pleaded guilty in the Local Court and was sentenced in the Supreme Court to an overall sentence of eight years and three months, with a non-parole period of five years and six months.
Existing NSW authority prohibited a court taking into account the utilitarian value of a plea of guilty in Commonwealth matters. Put another way, the earlier position was that it was not appropriate to recognise the saving of public time and money which is inherent in a plea of guilty – being the exact opposite of the approach in NSW sentencing for State-based matters, and also inconsistent with the current position in Victoria for sentencing in Commonwealth matters. Accordingly, given the law in NSW, the sentencing judge declined to give a discount for the utilitarian value, although there was a ‘moderate’ discount for other, permissible, reasons. Among the applicant’s many issues raised on appeal (inside traders do seem to have the resources to be a bit more comprehensive than other appellants), he asserted that a discount ought to have been allowed which included consideration of the utilitarian value of the plea – in other words, he asserted that the law in NSW was wrong.
The CCA sat a five-judge bench to resolve the law in relation to the plea of guilty. In a unanimous joint judgment, Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ determined that the earlier NSW authority on this point (Tyler v The Queen [2007] NSWCCA 247) should not be followed, but that NSW should instead become consistent with the Victorian position. The relevant section is s16A(2)(g) of the Crimes Act 1914 (Cth). The court traced the divergent views on whether the utilitarian value could be taken into account in Commonwealth sentencing right back to just before the introduction of the section (at [228]ff). They then held that the High Court authority which formed the basis for the earlier NSW position (Cameron v The Queen (2002) 209 CLR 339) needs to be viewed differently than it was originally interpreted ([248]ff). Section 16A(2)(g) provides no express limitation on the manner in which a plea can be taken into account (at [269]) and there are a range of additional factors which suggest that the utilitarian value should be able to be taken into account (at [270] to [274]). The court found that the parliament intended the encouragement of guilty pleas not only to provide evidence of remorse, but also to assist in the administration of justice ([277]). So, as a consequence, in proceedings governed by s16A of the Commonwealth Crimes Act 1914, a sentencing judge is now entitled to take the utilitarian value into account in sentencing (at [278]), and in the interests of transparency should specify that discount – although a failure to do so would not itself be an error (at [280]).
For that and other reasons, the court allowed the appeal and resentenced the offender to an overall term of seven years, with a non-parole period of 4 years and 6 months.