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Court of Criminal Appeal 27 May 2014

Tan v R

[2014] NSWCCA 96

Drugs
CRIMINAL LAW MULDROCK ERROR CONCEDED RANGE OF OBJECTIVE SERIOUSNESS NO LESSER SENTENCE WARRANTED EXTENSION OF TIME TO APPEAL REFUSED

Citation: Tan v R [2014] NSWCCA 96
Court: Court of Criminal Appeal, New South Wales
Date: 27 May 2014
Judges: Leeming JA at [1]; Fullerton J at [2]; R A Hulme J at [3]

Background

The applicant was convicted by jury of supplying a large commercial quantity of heroin, contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW). The offence involved approximately 14 kilograms of heroin at 70 percent purity, with a street value estimated between $14.5 million and $20.3 million. The quantity involved was fourteen times the statutory threshold for a "large commercial quantity."

In June 2010, the District Court sentenced the applicant to 15 years 3 months and 18 days imprisonment, with a non-parole period of 10 years. The applicant filed a Notice of Application for Leave to Appeal in December 2013, more than three years after sentencing, well outside the statutory time limits. He therefore also sought an extension of time in which to bring the application.

  • Whether the sentencing judge erred by applying the standard non-parole period framework as required under R v Way, an approach subsequently disapproved by the High Court in Muldrock v The Queen (known as "Muldrock error")
  • Whether the sentencing judge incorrectly assessed the objective seriousness of the offence
  • Whether the sentencing judge wrongly identified organised criminal activity and disregard for public safety as aggravating factors
  • Whether the sentencing judge failed to give adequate weight to the applicant's youth
  • Whether the applicant suffered a justifiable sense of grievance arising from the sentences imposed on co-offenders (parity)
  • Whether the sentence was manifestly excessive
  • Whether an extension of time to appeal should be granted

Decision

The Crown conceded that the sentencing judge had applied the Way approach to the standard non-parole period, which the High Court in Muldrock had since held to be incorrect. The Court accepted this concession. However, the existence of Muldrock error does not automatically warrant a lesser sentence; under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court must still determine whether a different sentence should have been passed.

On objective seriousness, the Court found no error in the sentencing judge's characterisation of the offence as falling in the mid-range. The applicant's contention that his role was more peripheral did not displace the judge's finding, which was supported by evidence including 40 telephone contacts with a co-offender in the 15 days before the transaction and the accommodation rented under a false name. The Court was satisfied that the aggravating factors of organised criminal activity and harm to the community were properly identified and applied.

On parity, the co-offenders Loh and Kho had pleaded guilty, cooperated substantially with authorities, and received significantly reduced sentences as a result. The applicant had contested the charge at trial, admitted involvement only during sentencing proceedings, and provided information of minimal intelligence value. The Court held there was no justifiable sense of grievance arising from the disparity, given these material differences in circumstances.

Taking all grounds together, the Court concluded that no lesser sentence was warranted. The applicant had received favourable subjective findings, including youth, good character, and the hardship of imprisonment away from his overseas family. A 15 percent discount for assistance was described by the Court as generous given the limited value of the information provided. Assessed against the legislative guideposts of a maximum of life imprisonment and a standard non-parole period of 15 years, the sentence was not excessive. Because only one ground had any merit, and that ground produced no practical benefit, the extension of time was refused.

Orders Made

  • Extension of time in which to apply for leave to appeal against sentence refused.

Key Takeaways

  • Conceding Muldrock error does not automatically entitle an applicant to a reduced sentence. Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal must still determine whether a lesser sentence is actually warranted before granting any relief.
  • Where co-offenders received substantially lighter sentences due to guilty pleas and significant cooperation with authorities, no justifiable sense of grievance arises for a co-accused who contested the charge and provided assistance of minimal value.
  • Aggravating factors such as organised criminal activity and harm to the community are properly applied in large commercial drug supply cases, even where the precise position of the offender within the criminal organisation cannot be definitively established.
  • Inordinate and inadequately explained delay in filing an application for leave to appeal will weigh heavily against the grant of an extension of time, particularly where the substantive grounds of appeal lack practical merit.
  • The maximum penalty and the standard non-parole period remain relevant legislative guideposts after Muldrock, even though they are no longer to be applied as a two-stage numerical framework.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 6(3), 23
- Criminal Appeal Act 1912 (NSW)
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Caristo v R [2011] NSWCCA 7
- England v R; Phanith v R [2009] NSWCCA 274
- Mansour v R [2011] NSWCCA 28
- Mulato v R [2006] NSWCCA 282
- R v Swan [2006] NSWCCA 47