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Court of Criminal Appeal 16 December 2011

Fong v R

[2011] NSWCCA 283

Drugs
CRIMINAL LAW HEROIN PLEA OF GUILTY FINDING OF SPECIAL CIRCUMSTANCES OFFENDERS LEAVE GRANTED

Citation: Fong v R [2011] NSWCCA 283
Court: Court of Criminal Appeal, NSW
Date: 16 December 2011
Judges: Bathurst CJ, Simpson J, Adamson J

Background

The applicant pleaded guilty in the District Court to a single charge of ongoing supply of heroin under s 25A(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 20 years' imprisonment. He also asked the court to take into account two further offences on a Form 1: supply and possession of heroin. The offending arose from an organised heroin distribution enterprise operating out of residential premises in Erskineville, with street sales conducted in Surry Hills.

The applicant was one of three co-offenders sentenced together. His two co-offenders, Chow and Wong, were each charged with knowingly taking part in the supply of not less than a commercial quantity of heroin, an offence that carries a standard non-parole period of 10 years. Both co-offenders also had a money-laundering offence (involving more than $480,000 in cash) taken into account on a Form 1. The applicant's charge was different: the ongoing supply offence under s 25A carries no standard non-parole period.

The District Court sentenced the applicant to 5 years and 3 months with a non-parole period of 3 years. Chow received 6 years with a non-parole period of 3 years, and Wong received 7 years and 6 months with a non-parole period of 5 years. The applicant sought leave to appeal, arguing that his sentence was disproportionately high relative to his co-offenders' sentences, given his lesser role.

  • Whether the sentencing judge erred in assessing the objective gravity of the applicant's offence, including whether he improperly applied the standard non-parole period framework to an offence that does not attract one
  • Whether the principle of proportionality was correctly applied when comparing the applicant's sentence against the sentences imposed on his co-offenders, particularly Chow
  • Whether greater disparity between the sentences was warranted, given the differences in culpability, role, and personal circumstances between the applicant and Chow

Decision

Simpson J (with whom Bathurst CJ and Adamson J agreed) dismissed the ground alleging error in the assessment of objective gravity. The Remarks on Sentence made clear that the sentencing judge was fully aware the standard non-parole period applied only to the co-offenders' charges and not to the applicant's offence. There was nothing to suggest a two-step sentencing approach had been wrongly applied. A finding of objective gravity is required in all sentencing exercises, and no error was established on that basis.

The remaining ground, however, succeeded. Simpson J found that the disparity between the applicant's sentence and Chow's sentence was insufficient to reflect the meaningful differences between the two offenders. Chow's involvement was greater, and his personal circumstances were significantly less mitigatory than the applicant's. Yet Chow's head sentence exceeded the applicant's by only 9 months (approximately 14%), and their non-parole periods were identical. The court concluded that greater disparity was called for.

The court acknowledged that the applicant's offence was serious and warranted significant punishment. Without the proportionality issue, the sentence could not have been said to be manifestly excessive. Accordingly, the court reduced only the non-parole period, and by a relatively modest margin.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence quashed
  • In lieu of the original sentence, the applicant was sentenced to imprisonment for 5 years and 3 months, commencing 18 April 2009 and expiring 18 July 2014, with a non-parole period of 2 years and 6 months, expiring 17 October 2011
  • The applicant was eligible for consideration for release on parole from 17 October 2011

Key Takeaways

  • Where a sentencing court imposes sentences on co-offenders simultaneously, the proportionality principle requires that the differences in culpability, role, and personal circumstances be adequately reflected in the disparity between sentences.
  • A sentence that is not independently manifestly excessive may nonetheless be set aside on appeal where it fails to reflect a sufficient disparity from a co-offender's lesser sentence, given the differences between the offenders.
  • The Court of Criminal Appeal confirmed that a finding of objective gravity is a required step in all sentencing exercises, not only those involving an offence with a standard non-parole period.
  • No error arose merely from the sentencing judge identifying the objective gravity of an offence that carries no standard non-parole period; the relevant question was whether the reasons revealed that the standard non-parole period framework had been misapplied.
  • In adjusting for the proportionality error, the Court reduced only the non-parole period and by a modest margin, reflecting that the underlying head sentence remained appropriate for the seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3; Pt 4 Div 1A; s 44(2)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Muldrock v The Queen [2011] HCA 39
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Andrew John Sivell [2009] NSWCCA 286
- Georgopolous v R [2010] NSWCCA 246