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Court of Criminal Appeal 25 June 2010

Wei Zheng WONG v R

[2010] NSWCCA 160

Drugs

Citation: Wei Zheng Wong v R [2010] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 25 June 2010
Judge(s): McClellan CJ at CL, Hislop J, Barr AJ

Background

The appellant, a 22-year-old Malaysian-born man, pleaded guilty in the Local Court to knowingly taking part in the cultivation of 255 cannabis plants by enhanced indoor means at a residential premises in Cartwright, representing a large commercial quantity under the Drug Misuse and Trafficking Act 1985. He had been living at the premises for approximately six months, occupying one room while five other rooms were used to house the cannabis operation. He told police he had only watered the plants as a condition of free accommodation arranged by his landlord.

The District Court rejected the appellant's minimisation of his role. Judge Sides QC DCJ found beyond reasonable doubt that the appellant had not only watered but also fertilised and guarded the plants throughout the six-month period, and that his motive was greed. The sentencing judge expressed doubt about the appellant's claimed remorse, citing a general lack of candour throughout proceedings. A 25 per cent discount was applied for the utilitarian value of the early guilty plea.

The appellant received a head sentence of 3 years and 9 months imprisonment, with a non-parole period of 1 year and 9 months. He sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence imposed was manifestly excessive, having regard to comparable cases and sentencing statistics
  • Whether case comparisons and Judicial Commission statistics provided a reliable basis for demonstrating sentencing error
  • Whether the psychological impact of incarceration and the appellant's personal circumstances warranted a lesser sentence

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, granting leave but finding no error in the sentence imposed below. Barr AJ, with whom McClellan CJ at CL and Hislop J agreed, held that the sentence fell within the proper exercise of the sentencing judge's discretion.

The Court declined to place weight on the comparative case analysis advanced by the appellant. It reaffirmed, citing Regina v George and Regina v Morgan, that such comparisons offer little assistance. The Court also declined to draw meaningful conclusions from the Judicial Commission statistics, noting a particular difficulty: enhanced indoor cultivation had only become subject to a distinct sentencing regime in 2008, leaving too few recorded sentences to identify any established range.

The Court assessed the sentence against the statutory framework, noting a maximum penalty of 20 years and a standard non-parole period of 10 years. While the sentencing judge had found the offence fell below the mid-range of objective seriousness (partly due to the early plea), the six-month duration of the appellant's involvement, his actual role in watering, fertilising, and guarding the plants, and general deterrence all supported a substantial custodial term. The extension of the parole period at the expense of the non-parole period, given the appellant's lack of prior custody, was also noted as appropriate and unchallenged.

The Court rejected the submission that remorse had been demonstrated, deferring to the sentencing judge's contrary finding. The psychological evidence regarding the effects of incarceration did not, in the Court's view, support a periodic or non-custodial alternative.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Note: An order made at the time of judgment purporting to quash the appellant's conviction under s 70 of the Electricity Supply Act 1995 was made in error. The Court subsequently vacated that order, leaving the conviction and its consequences intact.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentence comparisons drawn from unrelated cases provide limited assistance when assessing manifest excess in criminal sentencing.
  • Where a specialised sentencing regime is newly introduced, as with enhanced indoor cannabis cultivation under the 2008 amendments, insufficient precedent may exist to identify any established sentencing range, making statistical comparisons particularly unreliable.
  • The appropriate methodology for assessing manifest excess is to measure the sentence against the applicable maximum penalty and standard non-parole period, rather than by reference to comparable decisions or statistics alone.
  • A sentencing judge's finding that an offender lacked genuine remorse, grounded in observed conduct and a general lack of candour, will carry significant weight on appeal and is not easily displaced.
  • Clerical or administrative errors in appellate orders, such as the erroneous quashing of a separate conviction, may be identified and corrected by the Court after judgment is delivered.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Electricity Supply Act 1995 (NSW), s 70

Cases:
- Regina v George (2004) 149 A Crim R 38
- Regina v Morgan (1993) 70 A Crim R 368
- Truong v R [2009] NSWCCA 41
- Bui v R [2008] NSWCCA 314
- Nguyen v R [2009] NSWCCA 283
- Pham v R [2009] NSWCCA 266
- Phan v R [2010] NSWCCA 8