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Court of Criminal Appeal 12 August 2016

Wang, Dong Pei v R

[2016] NSWCCA 161

Drugs
CRIMINAL LAW SENTENCE APPEAL WHETHER DISPARITY WITH SENTENCE OF CO OFFENDER WHO PLEADED NOT GUILTY WHETHER JUSTIFIABLE SENSE OF GRIEVANCE WHETHER SENTENCE SHOULD BE REDUCED

Citation: Wang, Dong Pei v R [2016] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 12 August 2016
Judges: Hoeben CJ at CL; Simpson JA; Price J

Background

The applicant pleaded guilty in the District Court to two counts of drug supply under the Drug Misuse and Trafficking Act 1985 (NSW): one count of supplying a commercial quantity of methylamphetamine (just under one kilogram) and one count of supplying a large commercial quantity (almost 10 kilograms). He received a 25% discount for his early guilty pleas and was sentenced to an aggregate term of 12 years with a non-parole period of 8 years and 6 months.

The offences arose from an undercover police operation in late 2013. The applicant acted as the chief negotiator with undercover officers, delivering the drugs directly and arranging the second, larger transaction. He was paid $10,000 for the first transaction and stood to receive $100,000 for the second. Three co-offenders were also charged, including Wenping He ("HE"), who acted primarily as a lookout and driver and who held a supervisory role authorising the second transaction.

HE pleaded not guilty, was convicted after trial, and was sentenced by a different District Court judge. The applicant sought leave to appeal on the sole ground that his sentence was marked by an unjustifiable disparity when compared to HE's sentence.

  • Whether a justifiable sense of grievance arose from a marked disparity between the applicant's sentence and the sentence imposed on his co-offender HE.
  • Whether, if such disparity was established, the applicant's sentence should be reduced, and by how much.

Decision

Price J (with whom Hoeben CJ at CL and Simpson JA agreed) accepted that a justifiable sense of grievance arose. The court conducted a comparative analysis of the two sentences, noting that HE played a more significant role overall: he was the supplier of the drugs and held authority over the applicant, including requiring his authorisation before the second transaction could proceed. Despite this, HE received a sentence that, when adjusted to account for the 25% guilty plea discount the applicant received (a discount HE did not receive because he pleaded not guilty), was noticeably lighter than the applicant's sentence in terms of the non-parole period.

The court acknowledged that both sentences were lenient. Importantly, however, it noted that the leniency was not so extreme as to make any reduction "an affront to the proper administration of justice," drawing on the High Court's formulation in Green v R; Quinn v R (2011) 244 CLR 462. The court is not obliged to reduce a sentence to a level it regards as erroneously lenient, but the disparity here was sufficient to warrant re-sentencing.

Given the objective gravity of the offending and the applicable statutory maximum penalties and standard non-parole periods (20 years and life imprisonment respectively), the court found that the scope for reduction was limited. Price J found special circumstances based on the applicant's need for rehabilitation and counselling upon release, which justified a longer balance of term relative to the non-parole period. The aggregate sentence was reduced from 12 years to 11 years and 6 months, with the non-parole period reduced from 8 years and 6 months to 7 years and 9 months. Any further reduction, the court noted, would produce a manifestly inadequate sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The aggregate sentence imposed by the District Court on 8 April 2015 was quashed.
  • The applicant was re-sentenced to an aggregate term of 11 years and 6 months imprisonment, comprising a non-parole period of 7 years and 9 months commencing 13 November 2013 and expiring 12 August 2021, with a balance of term of 3 years and 9 months expiring 12 May 2025.
  • The earliest parole eligibility date was set at 12 August 2021.

Key Takeaways

  • A co-offender's higher degree of criminality does not automatically produce a proportionally higher sentence; where the resulting disparity creates a justifiable sense of grievance for the offender who received the heavier sentence, appellate intervention may be warranted.
  • Under the principle confirmed in Green v R; Quinn v R, the Court of Criminal Appeal is not required to reduce a sentence to a level it regards as erroneously lenient, even when disparity is established; it must balance the interests of consistency against the risk of compounding leniency.
  • Where two co-offenders are sentenced by different judges, divergence in outcomes can generate a disparity ground even when the objective factors (role, plea, culpability) might suggest the sentences are explicable in isolation.
  • Special circumstances were found on the facts here, reflecting the applicant's rehabilitation needs, which permitted an adjusted ratio between the non-parole period and the balance of term within the re-sentenced aggregate.
  • Guilty pleas that generate a 25% discount remain a significant variable in disparity analysis; the court performed a hypothetical adjustment to HE's sentence to strip out the plea discount and compare the two sentences on a consistent basis.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
- R v Draper (unreported, Court of Criminal Appeal (NSW), 12 December 1986)
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Ilbay [2000] NSWCCA 251