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Court of Criminal Appeal 25 September 2002

R v Man Kong Ho

[2002] NSWCCA 379

Also reported as (2002) 133 A Crim R 340
Drugs
SENTENCE APPEAL SENTENCE NOT MANIFESTLY EXCESSIVE PARITY NO JUSTIFIABLE SENSE OF GRIEVANCE.

Citation: R v Man Kong Ho [2002] NSWCCA 379
Court: NSW Court of Criminal Appeal
Date: 25 September 2002
Judge(s): Wood CJ at CL, Sully J, Dowd J

Background

The appellant pleaded guilty to knowingly taking part in the supply of heroin in a quantity not less than the large commercial quantity, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The offence carried a maximum of life imprisonment. Police observed the appellant collecting a backpack from another vehicle; it was found to contain 4.05 kilograms of heroin, more than four times the large commercial quantity threshold.

The appellant had cooperated extensively with authorities. He gave a detailed voluntary statement, signed an undertaking to give evidence against a co-accused, and provided information on other matters. His evidence proved accurate, useful, and crucial to the successful prosecution of that co-accused.

At sentencing in the District Court, the appellant was 22 years old, married with a young daughter, had no prior convictions, and had a difficult upbringing, an undiagnosed learning disability, clinical depression assessed as longstanding, and a history of problem gambling. The sentencing judge imposed five years imprisonment with a non-parole period of three years and six months, backdated to the date of arrest.

  • Whether the sentencing judge erred by setting a starting point of ten years before applying discounts for the guilty plea and assistance to authorities
  • Whether the sentencing judge gave sufficient weight to the appellant's subjective factors, including his personal history, mental health, and cooperation
  • Whether the discount applied for assistance and the plea of guilty was adequate
  • Whether the resulting sentence was manifestly excessive
  • Whether a parity argument arose from the sentence imposed on the co-accused, Fang Xiao He, and whether the appellant had a justifiable sense of grievance

Decision

The Court found no error in the sentencing judge's choice of a ten-year starting point. The 4.05 kilogram quantity was well in excess of the large commercial threshold, and statistical data from the Judicial Commission showed a ten-year figure was actually in the low range for comparable offences. The Court noted that statistics reflect sentences actually imposed rather than starting points, so a starting point higher than the statistical median is expected.

On the question of subjective factors, the Court concluded the sentencing judge had adequately considered the appellant's youth, lack of criminal history, mental health difficulties, learning disability, and background. The sentencing judge's treatment of these matters did not disclose error applying the principles in House v The King (1936) 55 CLR 499 and Wong v R (2001) 185 ALR 233, which require an identifiable error of principle or a manifestly excessive result before an appellate court will interfere.

Regarding the discount for the plea and assistance, the Court was satisfied the sentencing judge correctly applied the relevant principles, including those from R v Thomson; R v Houlton (2000) 49 NSWLR 383. The combined effect of the discounts brought the sentence down to five years, a substantial reduction from the ten-year starting point, and the Court found no basis to conclude the discounts were inadequate.

On parity, the Court noted that the co-accused He received sentences on multiple charges with a significantly greater total non-parole period. Although the formal individual sentences might appear to produce a disparity, the actual time He would serve before becoming eligible for parole was considerably greater. The Court found no justifiable sense of grievance arose in the circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing starting point is not the same as a sentence actually imposed, and statistical sentencing ranges from the Judicial Commission reflect final sentences rather than starting figures.
  • Where a co-accused receives sentences on multiple charges structured to reflect totality, the relevant comparison for parity purposes is the actual time to be served before parole eligibility, not the formal structure of individual sentences.
  • No error was established simply because a courier's starting point of ten years fell above the statistical median where the quantity involved was substantially in excess of the large commercial threshold.
  • Sentencing an accessory more severely than a principal does not automatically create a justifiable sense of grievance; the circumstances of each case must be assessed individually.
  • Under the principles in House v The King, an appellate court will not interfere with a sentence unless a specific error of principle is identified or the sentence is so disproportionate as to suggest the exercise of the sentencing discretion was incorrect.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- House v The King (1936) 55 CLR 499
- Wong v R (2001) 185 ALR 233
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Wong and Leung (1999) 48 NSWLR 340
- R v Clark [2001] NSWCCA 223
- R v Lawson (1997) 98 A Crim R 463
- R v Gallagher (1991) 23 NSWLR 220
- Postiglione v The Queen (1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- He v R [2002] NSWCCA 370
- R v Houvardis (Michael) [2000] NSWCCA 203
- R v Diamond (Jason David) (unreported, NSW CCA, 18 February 1993)
- R v Bell [1999] NSWCCA 423
- R v Raz [1992] NSWCCA 121