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Court of Criminal Appeal 30 September 2009

SHEN, David Ying v R

[2009] NSWCCA 251

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY WITH CO OFFENDER SENTENCED IN QUEENSLAND PARTIAL ACCUMULATION OF SENTENCES

Citation: SHEN, David Ying v R [2009] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 30 September 2009
Judge(s): Hodgson JA, Howie J, Fullerton J

Background

The appellant pleaded guilty in the District Court to two serious drug offences involving MDMA (also known as ecstasy). The first was trafficking a commercial quantity of a border-controlled drug under the Commonwealth Criminal Code, arising from the distribution of 230,000 tablets imported from Canada in May 2006. The second was knowingly taking part in the supply of a large commercial quantity of MDMA under the NSW Drug Misuse and Trafficking Act, arising from a separate importation in September 2006 involving the same criminal syndicate but only 10,000 tablets.

The appellant was not alleged to have been involved in the physical importation of the drugs. Both offences carried a maximum of life imprisonment. At first instance, the District Court (Hulme DCJ) imposed sentences totalling 13 years with an effective non-parole period of 9 years, using partial accumulation of the two sentences.

The appellant sought leave to appeal on two grounds: that the sentencing judge failed to give adequate weight to parity with a co-offender sentenced in Queensland, and that the ratio between the effective head sentence and non-parole period was too high.

  • Whether the sentencing judge made adequate allowance for parity with a co-offender (Matthew Reed) who was sentenced in the Queensland Supreme Court on related importing charges and received 12 years with an 8-year non-parole period.
  • Whether the effective non-parole period of 9 years, representing 69% of the 13-year head sentence, was excessive given the overlap between the two offences and the applicant's subjective circumstances.
  • Whether the degree of accumulation of the Commonwealth and State sentences should be reduced to bring the overall sentence into appropriate parity with the Reed sentence.

Decision

On the parity ground, the Court of Criminal Appeal accepted that the appellant's sentence resulted in an unjustified disparity when compared with Reed's sentence. Reed had been convicted of four counts of importing commercial quantities of border-controlled drugs, including the very MDMA that the appellant trafficked and agreed to supply, as well as substantial cocaine importations. Reed received concurrent sentences of 12 years with an 8-year non-parole period. The Court found the appellant's effective non-parole period of 9 years was higher than Reed's despite the appellant's role being that of a downstream trafficker, not an importer.

On the ratio ground, the Court noted that the accepted Commonwealth sentencing norm places the non-parole period at between 60% and 66% of the head sentence. The original sentencing judge had acknowledged this but fixed the ratio at 69%, treating it as a compromise between state and federal sentencing regimes. The Court of Criminal Appeal accepted that some departure from the standard ratio was defensible given the gravity of the offending, but concluded that the appropriate remedy was to reduce the degree of accumulation rather than alter the individual sentences.

The Court confirmed the State sentence and quashed the Commonwealth sentence. It reduced the accumulation so that the Commonwealth sentence commenced six months into the State sentence (rather than two years in). This produced an overall sentence of 11 years and 6 months with an effective non-parole period of 7 years and 6 months, representing 65.2% of the head sentence. The Court acknowledged that even this ratio slightly exceeds what is generally considered appropriate for partial accumulation of Commonwealth and State offences, but found that in the circumstances a lower ratio would inadequately reflect the objective gravity of the offending.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence for the State offence confirmed.
  • Sentence for the Commonwealth offence quashed and replaced with 11 years imprisonment, non-parole period of 7 years, commencing 20 March 2007, with eligibility for parole on 19 March 2014.

Key Takeaways

  • The parity principle applies across jurisdictions: even where a co-offender was sentenced in a different state (here, Queensland), an unjustified disparity in sentence can ground a successful appeal in NSW.
  • Where two discrete episodes of serious drug trafficking are sentenced together, partial accumulation is appropriate, but the extent of accumulation must be calibrated to achieve parity and to reflect the appropriate ratio between head sentence and non-parole period.
  • Under the accepted Commonwealth sentencing framework, the non-parole period for a federal offence is generally expected to fall between 60% and 66% of the head sentence, though the Court of Criminal Appeal confirmed this is a guide rather than an inflexible rule.
  • Reducing the degree of accumulation, rather than varying the individual sentences, can be a legitimate mechanism to bring an overall sentence into appropriate alignment with parity and ratio principles.
  • The District Court's original sentences were each defensible in isolation; the error lay in the combined effect of the accumulation order, producing an outcome that could not be reconciled with the co-offender's sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Lowe v R [1984] HCA 46; 154 CLR 606
- Pham v R [2009] NSWCCA 25
- Postiglione v R [1997] HCA 26; 189 CLR 295
- R v Kerr [2003] NSWCCA 234
- R v To [2007] NSWCCA 200; 172 A Crim R 121
- SZ v R [2007] NSWCCA 19; 168 A Crim R 249