Citation: R v Hung Lo [2005] NSWCCA 436
Court: NSW Court of Criminal Appeal
Date: 16 December 2005
Judge(s): Hulme J, Hidden J, Latham J
Background
The applicant, a Hong Kong national, was convicted in the District Court of two counts of heroin supply committed on the same day in August 2003. The first count involved supplying a large commercial quantity of heroin (approximately 1,406 grams), and the second involved supplying a commercial quantity (approximately 834 grams). The applicant had been observed by police during surveillance and was characterised at sentence as a "foot soldier" in the drug operation.
The District Court judge sentenced the applicant to 10 years and 6 months with a seven-year non-parole period for the first count, and an additional sentence for the second count commencing in 2008, producing an effective total of 11 years imprisonment with a nine-year aggregate non-parole period. The sentencing judge had granted the applicant a 25 per cent discount for an early guilty plea and made a finding of special circumstances under the relevant sentencing legislation, purporting to reduce each non-parole period below the statutory three-quarters ratio.
The applicant sought leave to appeal, arguing that the sentencing judge misapplied the standard non-parole period framework, failed to treat partial accumulation as a special circumstance, and gave no weight to his expressed remorse.
Legal Issues
- Whether the sentencing judge erred in using the standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 as starting points rather than reference points
- Whether partial accumulation of sentences should itself have been recognised as a "special circumstance" under section 44 of that Act, warranting a reduction in the non-parole period
- Whether the sentencing judge failed to give adequate weight to the applicant's expressed remorse or contrition
- Whether the overall sentence warranted the Court's intervention on the grounds of parity with co-offenders
Decision
The Court found that the sentencing judge had misapplied the standard non-parole period provisions. Hulme J agreed with Latham J that his Honour's approach was wrong, and noted an apparent inconsistency: the judge had found special circumstances and indicated individual sentences with non-parole periods below three-quarters of the respective totals, yet the final combined orders produced a nine-year aggregate non-parole period without any explanation for the departure from that approach.
On the remorse ground, the Court rejected the appeal. The only evidence of remorse was a statement recorded in a Probation and Parole report, and the sentencing judge had not been obliged to accept it as genuinely reflecting the applicant's state of mind. The applicant had made false statements to police on arrest, gave no evidence himself on sentence, and the surrounding circumstances undermined the weight of the claimed contrition.
On parity, the Court found no basis for intervention. The only co-offender sentenced for the same two offences received a substantially higher sentence, which confirmed there was no injurious disparity disadvantaging the applicant.
The Court upheld the aggregate head sentence as within the sentencing discretion, given the quantities involved, but quashed the non-parole periods to give proper effect to the finding of special circumstances. A partial accumulation of six months on the Count 1 sentence was structured to reflect the totality of criminality while acknowledging that both offences were committed on the same day.
Orders Made
- Leave to appeal granted
- Appeal allowed in part
- Sentences and non-parole periods imposed by McLoughlin DCJ quashed
- On Count 2: non-parole period of 4 years from 21 August 2003, expiring 20 August 2007, with a balance of term of 2 years expiring 20 August 2009
- On Count 1: non-parole period of 6.5 years from 21 February 2004, expiring 20 August 2010, with a balance of term of 4 years expiring 20 August 2014
Key Takeaways
- The Court of Criminal Appeal confirmed that standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 are reference points for sentencing, not mandatory starting points to be applied mechanically.
- Where a sentencing judge finds special circumstances and structures individual sentences accordingly, the final combined orders must remain internally consistent with that finding; unexplained inconsistency between the individual sentence indications and the effective aggregate non-parole period constitutes error.
- Partial accumulation of sentences can itself constitute a "special circumstance" justifying a reduction in the non-parole period, and a sentencing judge's failure to treat it as such may warrant appellate intervention.
- Claimed remorse expressed only through a third-party report, combined with demonstrated false statements to police and no evidence given by the offender on sentence, does not compel a sentencing court to make a favourable finding on contrition.
- In dismissing the parity ground, the Court noted that the co-offender sentenced for the same two counts received a significantly higher sentence, leaving no arguable disparity in the applicant's favour.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 44
Cases
- R v Way (2004) 60 NSWLR 168
- Wong v R (2001) 207 CLR 584
- Power v R (1974) 131 CLR 623
- R v Simpson (2001) 53 NSWLR 704
- Holloway v McFeeters (1956) 94 CLR 470
- R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44
- R v Sangalang [2005] NSWCCA 171
- R v Street [2005] NSWCCA 139
- R v Porteus [2005] NSWCCA 115
- R v Budiman (1998) 102 A Crim R 411
- R v Laurentiu and Becheru (1992) 63 A Crim R 402
- Hameed (2001) 123 A Crim R 213
- Klein (2000) A Crim R 90
- Le Cerf (1976) 8 ALR 349
- Muanchukingkan (1990) 52 A Crim R 354
- Fabian (1992) 64 A Crim R 365
- R v Behar (unreported, CCA, 14 October 1998)