Citation: Regina v Wan & Phan [2001] NSWCCA 501
Court: NSW Court of Criminal Appeal
Date: 23 November 2001
Judge(s): Barr J, Adams J
Background
Two co-offenders were convicted in the District Court of supplying large commercial quantities of heroin, following an undercover National Crime Authority operation. The first applicant, Wan, supplied 350.4 grams of heroin in a completed transaction in November 1999 and then arranged a further supply of approximately 1.4 kilograms, carried out jointly with the second applicant, Phan. Phan was involved only in that second, larger supply.
Both applicants pleaded guilty and were sentenced by the Chief Judge of the District Court to ten years' imprisonment with a non-parole period of seven and a half years each. Both appealed, arguing the sentences were excessive.
Legal Issues
- Whether the sentencing judge erred by treating both applicants as equally culpable, despite one having committed two offences and supplied a larger overall quantity than the other
- Whether the sentencing judge erred by reducing the guilty plea discount on the basis that the Crown case was overwhelming, rather than applying the utilitarian discount principles set out in Thomson and Houlten v The Queen
Decision
The Court found a genuine distinction in the criminality of the two applicants. Wan was guilty of two offences and had supplied approximately 1.75 kilograms of heroin in total, while Phan was guilty of one offence involving 1.4 kilograms. Treating them identically was an error. Phan had a justifiable sense of grievance within the meaning of Lowe v The Queen, and his sentence warranted reduction relative to Wan's.
On the plea discount issue, the Court held that the sentencing judge had conflated two separate considerations: the strength of the Crown case and the utilitarian value of the guilty plea. Under Thomson and Houlten, the strength of the prosecution's evidence is not relevant to assessing a utilitarian discount. That discount is measured by the timing of the plea and the complexity of the matters that would otherwise require evidence to be gathered and adduced.
The Court accepted a twelve-year starting point as appropriate for Wan. Applying a twenty-five percent utilitarian discount, the Court found that figure apt given the involvement of undercover operatives and an informer, the complexity of the matter, and the genuine public interest in avoiding the exposure of covert sources. The same discount rate was applied to Phan's adjusted sentence.
Orders Made
- In both cases, leave to appeal granted, appeal allowed, and original sentence quashed
- Wan: sentence of nine years imposed, with a non-parole period of six years and nine months, commencing 17 November 1999, eligible for parole 16 August 2006
- Phan: sentence of seven years and six months imposed, with a non-parole period of five years and seven months, commencing 17 November 1999, eligible for parole 16 June 2005
Key Takeaways
- The strength of the Crown case is not a permissible factor when assessing the utilitarian discount for a guilty plea; it may, however, be relevant to contrition as a separate sentencing consideration
- Under Thomson and Houlten, the utilitarian discount for a guilty plea is measured by the timing of the plea and the complexity of the issues involved, with the conventional range falling between ten and twenty-five percent
- Where co-offenders are sentenced identically despite material differences in their culpability and the number of offences each committed, the more favourably placed offender may have a justifiable sense of grievance sufficient to ground a sentence appeal
- A genuine public interest in protecting covert operatives and informers from unnecessary exposure at trial is a relevant consideration in assessing the appropriate utilitarian discount
- Conflating the strength of the Crown case with the utilitarian plea discount analysis constitutes a sentencing error capable of producing a materially different outcome
Legislation and Cases Referenced
Legislation:
- Justices Act 1902 (NSW), s 51A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Thomson and Houlten v The Queen [2000] NSWCCA 309; 49 NSWLR 383