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Judgment handed down in Commonwealth DPP v Thomas and Wu

10 October 2016

The Court of Appeal has held that, when a person is sentenced after pleading guilty to a Commonwealth offence, he or she is nearly always entitled to a sentencing discount because the plea of guilty saves the community the expense of a contested trial and spares witnesses and victims from the experience of such a trial. The Court declined to follow decisions of the New South Wales Court of Criminal Appeal and the Full Court of the Australian Capital Territory to the contrary.

The Court of Appeal affirmed the practice followed in Victoria, that a sentencing court must take into account the objective ‘utilitarian benefit’ of a plea of guilty in sentencing both State and federal offenders.

The Court found that the Crimes Act 1914 (Cth), in requiring a sentencing court to have regard to the fact of a plea of guilty, required that regard be had to the utilitarian benefit of a plea of guilty.  

The Crown appeals of Thomas and Wu were heard together. They were both sentenced on drug offences relating to a commercial quantity of a drug. The Director appealed the offenders’ sentences, among other things, on the ground that the sentencing judge erred in granting a discount for the utilitarian benefit of their pleas of guilty. The Director also appealed against the sentences on the ground that the head sentence and non-parole period were manifestly inadequate.

Thomas was sentenced to 5 years imprisonment, with a non-parole period of 3 years, for one charge of attempt to possess a commercial quantity of a border controlled drug, namely, methamphetamine. The combined total weight of the pure methamphetamine the respondent attempted to possess was 3.606 kilograms, which was 4.8 times the applicable commercial quantity. Thomas was found by the sentencing judge to be ‘at the lower end of the distribution chain of the drug’s progress up the chain at Melbourne’, but above the role of a courier.  

The Court found that there was no error in the sentencing judge allowing a discount for the utilitarian benefit of the plea of guilty.

The Court considered, however, that having regard to the objective gravity of the respondent’s offending, the sentence imposed differed so markedly from sentences that had been imposed in comparable cases, that the sentencing discretion should be re-opened.

The Court considered that the sentence imposed did not satisfy the requirements of general deterrence, just punishment and denunciation. The sentence did not adequately reflect the maximum penalty for the offence which was life imprisonment; the high objective seriousness of the offence, given that the amount of drugs was 4.8 times the commercial quantity; the respondent’s role being more than a mere courier; and that there were no significant personal circumstances which called for substantial mitigation of the sentence.

The Court resentenced Thomas to a term of imprisonment of 9 years with a non-parole period of 6 years and 3 months.

As in the appeal in Thomas, the Director in the case of Wu submitted that the sentencing judge erred in allowing a discount for the utilitarian benefit of Wu’s plea of guilty. The Director also appealed on the grounds that the head sentence and non parole period were manifestly inadequate.

Wu pleaded guilty to importing a commercial quantity of a border controlled drug, namely methamphetamine. The single charge related to two shipments of methamphetamine, which had a combined weight of 3.965 kilograms, and the estimated street value was between approximately $2.9 and $3.9 million. Wu was sentenced to 6 years and 6 months imprisonment, with a non-parole period of 3 years and 6 months.

The Court did not consider that the judge was in error in applying a discount for a utilitarian benefit resulting from the plea of guilty.

The Court reviewed a number of decisions involving the importation of both a commercial and marketable quantity (which involves a lesser penalty). Upon review of the comparable cases, the Court considered that the sentence imposed here fell well below the range applicable for this category of seriousness of the offence.  

Wu was resentenced to 10 years and 6 months imprisonment with a non-parole period of 7 years and 6 months.

Read the full judgment on Austlii (External link)

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