Citation: R v Peng GAO; R v Benjamin LIM; Benjamin LIM v R [2007] NSWCCA 343
Court: NSW Court of Criminal Appeal
Date: 14 December 2007
Judge(s): Basten JA, Latham J, Rothman J
Background
Two respondents were sentenced in the District Court following guilty pleas to serious drug supply offences involving ecstasy (MDMA). The first respondent, Gao, was convicted of supplying a commercial quantity and a large commercial quantity of ecstasy to an undercover police operative at Darling Harbour in late 2005 and early 2006. The second respondent, Lim, was convicted of agreeing to supply a large commercial quantity (at least 500 grams, representing approximately 5,000 tablets) during negotiations in January 2006, in which he acted as Gao's supplier.
The sentencing judge found that both offences fell below the mid-range of objective gravity, in part because the drugs were supplied to undercover police and never reached the public. The Crown appealed both sentences on the ground that they were manifestly inadequate.
Lim also filed a cross-appeal, arguing the sentencing judge had failed to give sufficient weight to various mitigating factors in his favour.
Legal Issues
- Whether the sentencing judge correctly assessed the objective gravity of the offences, including the significance of the drugs being sold to undercover police rather than reaching the public
- Whether the sentences imposed on Gao and Lim were manifestly inadequate
- Whether the delay in lodging the Crown appeals affected the Court's approach to them
- Whether the sentencing judge gave sufficient weight to mitigating factors in Lim's case
Decision
The Court of Criminal Appeal dismissed the Crown appeal against Gao's sentence, finding no error sufficient to warrant intervention. The Crown's challenge was based on the sentencing judge's objective gravity assessment, but the Court did not find that assessment to be outside the available range in Gao's case.
The Crown appeal against Lim's sentence succeeded. The Court found the sentence imposed on Lim was manifestly inadequate. In setting aside the original sentence, the Court noted the seriousness of Lim's role: he was Gao's upstream supplier and the driving force behind the agreement to supply a large commercial quantity. While no drugs were actually delivered in the transactions involving Lim, the offence was completed upon agreement to supply.
The Court confirmed that the drugs ultimately not reaching the public, because undercover police were involved, does not as a general rule diminish an offender's culpability. Rothman J stated plainly that this outcome results from law enforcement action, not from any intention or restraint on the offender's part. The absence of victims may be one factor among many, but it carries limited weight.
Lim's own appeal against sentence was dismissed. The Court found the sentencing judge had properly considered the late guilty plea (allowing a 10% discount), prospects of rehabilitation (which were equivocal on the evidence), youth, family circumstances, and the finding of special circumstances. The Court imposed a sentence described as sitting at the very bottom of the available range.
Orders Made
Peng Gao:
- Crown appeal against sentence dismissed
Benjamin Lim:
- Leave to appeal against sentence granted
- Prisoner's appeal against sentence dismissed
- Crown appeal allowed; original sentence set aside
- On the charge of Supply Large Commercial Quantity of a Prohibited Drug: non-parole period of 6 years, commencing 6 August 2006, expiring 5 August 2012; balance of term of 3 years and 10 months, expiring 5 June 2016; eligible for parole from 6 August 2012
Key Takeaways
- No general principle exists that selling drugs to undercover police reduces an offender's culpability merely because the drugs do not reach the public. The Court of Criminal Appeal confirmed this benefit flows from law enforcement conduct, not from the offender's actions or intent.
- A sentence may be manifestly inadequate where a sentencing judge undervalues the objective gravity of an offence, particularly where the offender played an upstream or organising role in a large commercial quantity supply.
- Where mitigating factors such as rehabilitation prospects are equivocal on the evidence, a sentencing court is not required to give them significant weight; a finding to that effect will not, without more, establish error on appeal.
- Agreeing to supply a large commercial quantity is a completed offence; the failure of a transaction to proceed does not automatically reduce the gravity of the conduct.
- In dismissing Lim's own severity appeal, the Court of Criminal Appeal confirmed that a 10% discount for a late guilty plea, a finding of special circumstances, and consideration of youth and family circumstances were all properly reflected in the sentence ultimately imposed.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases:
- R v Chan [1999] NSWCCA 103
- Fahs v Regina [2007] NSWCCA 26
- R v Truong [2006] NSWCCA 318
- R v Sciberras (2006) 165 A Crim R 532; [2006] NSWCCA 268
- Vu v R [2006] NSWCCA 188
- McKibben v R [2007] NSWCCA 89
- R v Y [2002] NSWCCA 191