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Court of Criminal Appeal 29 March 2017

Wang v R

[2017] NSWCCA 61

Assault & violenceDrugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE “MULDROCK ERROR” PAROLE PERIOD APPLIES GROUND OF APPEAL ALLOWED RELEVANCE OF DELAY

Citation: Wang v R [2017] NSWCCA 61
Court: Court of Criminal Appeal
Date: 29 March 2017
Judge(s): Walton J, R A Hulme J (principal judgment), Beech-Jones J

Background

The appellant was convicted of supplying a large commercial quantity of ecstasy (approximately 5,000 pills), along with related drug supply and assault offences, arising from events on 12 July 2005. The District Court sentenced him in November 2006 to 20 years imprisonment with a 15-year non-parole period for the primary drug offence.

The appellant successfully appealed that sentence in 2009, and the Court of Criminal Appeal re-sentenced him to 16 years imprisonment with a 12-year non-parole period. Following the High Court's landmark decision in Muldrock v The Queen [2011] HCA 39, which fundamentally changed the approach to sentencing for offences carrying standard non-parole periods, the appellant sought a further review of his sentence.

After two applications under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), the matter was ultimately referred back to the Court of Criminal Appeal. The non-parole period imposed in 2009 was due to expire on 11 July 2017, lending some urgency to the proceedings.

  • Whether the 2009 re-sentencing was infected by "Muldrock error," that is, whether the Court had impermissibly applied the principles from R v Way [2004] NSWCCA 131, which the High Court subsequently held to have been wrongly decided.
  • Whether a lesser sentence was warranted in light of any established error.
  • How to apply the principle of totality when structuring the sentence for the primary offence alongside sentences for other concurrent and cumulative matters.
  • Whether a finding of special circumstances was warranted to alter the ratio between the non-parole period and the balance of the term.

Decision

The Court found that "Muldrock error" was established. The 2009 re-sentencing had proceeded on the R v Way framework, under which the standard non-parole period operated as a de facto starting point and sentencing involved a two-stage inquiry into whether departure from that figure was justified. The High Court in Muldrock held that approach to be wrong: the standard non-parole period is a legislative guidepost, not a starting point, and all relevant objective and subjective factors must be weighed together from the outset.

Three features of the 2009 judgment pointed to the error. First, Hidden J's language expressly framed the analysis around whether there were sufficient grounds to "depart from" the standard non-parole period, language that is characteristic of the discredited R v Way approach. Second, the arithmetic of the outcome, assessed seriousness "somewhat below the mid-range" producing a non-parole period exactly three years below the standard, was consistent with the mechanical adjustment methodology condemned in Muldrock. Third, Hidden J had drawn on sentencing statistics and comparable cases from the post-Way, pre-Muldrock era, which were themselves presumed to have been influenced by the erroneous approach.

Having found error, the Court exercised the sentencing discretion afresh under s 6(3) of the Criminal Appeal Act 1912 (NSW). It assessed the objective and subjective features of the offending and applied the statutory guideposts of the life imprisonment maximum and the 15-year standard non-parole period as required by Muldrock. On the question of totality, the Court concluded it was appropriate to partially accumulate the sentence for the primary offence by six months upon earlier sentences for other offences, including possessing firearms and using false instruments.

The Court declined to find special circumstances, citing Potts v R [2017] NSWCCA 10 as recent authority that no utility arises from such a finding in the relevant context. A lesser sentence was held to be warranted.

Orders Made

  • The appeal against sentence was allowed.
  • The sentence imposed by the Court of Criminal Appeal on 10 September 2009 was quashed.
  • In lieu, the appellant was sentenced for the primary offence (supplying a prohibited drug in not less than the large commercial quantity) to a non-parole period of 10 years 6 months, with a balance of term of 3 years 6 months (total: 14 years).
  • The sentence was dated from 12 January 2006, with the non-parole period having expired on 11 July 2016 and the total term to expire on 11 January 2020.
  • The appellant was declared eligible for release on parole.

Key Takeaways

  • A sentence imposed during the R v Way era carries a presumption that it was assessed according to the principles that Muldrock subsequently held to be wrong, unless the contrary is apparent from the judgment itself.
  • Language framing the sentencing task as requiring "departure" from the standard non-parole period, combined with arithmetically tidy outcomes, can together constitute sufficient indicators of Muldrock error to ground a successful appeal.
  • Where Muldrock error is established, the Court of Criminal Appeal must exercise the sentencing discretion entirely afresh and determine whether a lesser sentence is warranted under s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • The principle of totality may warrant partial accumulation of a head sentence upon earlier, shorter sentences to ensure the overall sentence reflects the full criminality involved, including antecedent offending dealt with summarily.
  • Under Potts v R [2017] NSWCCA 10, a formal finding of special circumstances carries no utility in certain sentencing contexts, and the Court declined to make one here.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 25(2)
- Crimes Act 1900 (NSW), s 58
- Criminal Appeal Act 1912 (NSW), ss 6(3), 79(1)
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7, ss 78, 79

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Xiao Feng Wang v R [2009] NSWCCA 223
- Application by Xiao Feng Wang pursuant to s 79 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 825
- Application by Xiao Feng Wang pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2016] NSWSC 1670
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- Davis v R [2015] NSWCCA 90
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Louizos v R [2014] NSWCCA 242
- Elchiekh v R [2016] NSWCCA 225
- Potts v R [2017] NSWCCA 10