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Court of Criminal Appeal 12 September 2003

Regina v Wong

[2003] NSWCCA 247

Fraud & dishonesty
CRIMINAL PRACTICE & PROCEDURE PARITY COMPARISON WITH ADULT

Citation: Regina v Wong [2003] NSWCCA 247
Court: New South Wales Court of Criminal Appeal
Date: 12 September 2003
Judge(s): Meagher JA, Sully J, Kirby J

Background

The appellant was a member of an organised gang that systematically extorted money from Asian shopkeepers and restaurateurs in the Parramatta area between July and August 2001. Gang members demanded weekly protection payments, typically around $280 per business, and enforced compliance through the coercive force of numbers and an implied threat of violence. The appellant pleaded guilty to malicious damage and multiple counts of demanding property with intent to steal, with two further offences taken into account on a Form 1.

In the District Court, Bellear DCJ sentenced the appellant to an effective term of two years and six months imprisonment, with a non-parole period of eighteen months. Several co-offenders also received sentences, including Hendy Tandiono (sentenced to four years with a two-year non-parole period) and Eric Ng, the gang's street-level leader, who was dealt with as a juvenile under the Children (Criminal Proceedings) Act 1987 and received a considerably lighter outcome.

The appellant sought leave to appeal on the basis of parity. He argued that, given the sentences imposed on his co-offenders, particularly the relatively short additional time in actual custody he faced compared to the more culpable Tandiono, he had a justifiable sense of grievance.

  • Whether the appellant had a justifiable sense of grievance arising from disparity between his sentence and those of his co-offenders, particularly Tandiono and Eric Ng
  • Whether the sentence imposed on Eric Ng under the juvenile regime was an appropriate benchmark for parity purposes
  • Whether the non-parole period of eighteen months should be reduced in light of any established disparity

Decision

The Court granted leave to appeal by majority but divided sharply on the outcome. Meagher JA and Sully J dismissed the appeal. Both were critical of the sentences imposed on co-offenders, viewing them as manifestly inadequate for the gravity of an organised extortion racket targeting vulnerable small business operators.

Sully J addressed the parity argument directly and firmly. His Honour expressed the view that Eric Ng ought to have been sentenced according to the ordinary law rather than under the privileged regime applicable to children, and that the inadequacy of Ng's outcome should not serve as any kind of benchmark for the appellant's sentence. Sully J considered that any legitimate parity comparison should be made against Tandiono's sentence, which was itself lenient, though not the subject of a Crown appeal. On that basis, no justifiable sense of grievance arose.

Kirby J took a different view. His Honour accepted that the head sentence of two years and six months was appropriate and that the primary judge's finding of special circumstances should stand. However, Kirby J was persuaded that disparity in the non-parole periods, when compared with both Tandiono's sentence and the outcome for Eric Ng, gave the appellant a legitimate sense of grievance. Kirby J proposed reducing the non-parole period from eighteen months to twelve months.

The appeal was dismissed by majority, with Meagher JA and Sully J outvoting Kirby J on the ultimate outcome. Despite Kirby J's proposed orders, the majority result was that the original sentence stood.

Orders Made

By majority (Meagher JA and Sully J):
- Leave to appeal granted
- Appeal dismissed

Kirby J (dissenting on outcome) proposed the following orders, which did not prevail:
- Leave to appeal granted; appeal allowed
- Sentence set aside and replaced as follows:
- Count 1: fixed term of 9 months imprisonment, commencing 29 November 2002, expiring 28 August 2003
- Count 2 (including Form 1): 2 years and 6 months imprisonment, concurrent with Count 1, commencing 29 November 2002, expiring 28 May 2005, with a non-parole period of 12 months expiring 28 November 2003
- Counts 3, 4 and 5: fixed term of 9 months imprisonment, concurrent, commencing 29 November 2002, expiring 28 August 2003

Key Takeaways

  • A sentence imposed under the juvenile regime of the Children (Criminal Proceedings) Act 1987 is not necessarily an appropriate parity benchmark when comparing sentences for adult co-offenders sentenced according to the ordinary law.
  • Where a co-offender's sentence is itself manifestly inadequate, that inadequacy should not anchor a parity argument; using a defective sentence as a benchmark risks subverting rather than vindicating the rule of law, as Sully J expressly held.
  • The Court of Criminal Appeal confirmed that parity comparisons must be grounded in correct sentencing principles, and that a justifiable sense of grievance cannot arise simply because a co-offender received a sentence that was itself too light.
  • Significant structural differences in gang hierarchy and the number of offences each participant committed are relevant factors when assessing whether disparity between sentences is genuinely unfair, or merely reflects appropriate distinctions in culpability.
  • The three judges disagreed on whether the minority's proposed adjustment to the non-parole period was justified, illustrating that parity arguments in multi-offender cases can produce closely contested outcomes even within a single appellate bench.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 99(1), 195
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- R v WKR (1993) 32 NSWLR 447
- R v Olbrich (1999) 199 CLR 270
- R v Boney [2001] NSWCCA 432
- R v Diamond (NSW, CCA, 18 February 1993)
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295