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15
Court of Criminal Appeal 31 March 2017

Wat v R

[2017] NSWCCA 62

Drugs
CRIMINAL LAW SENTENCE APPEAL WHETHER MARKED DISPARITY WITH CO OFFENDER’S SENTENCE WHETHER JUSTIFIABLE SENSE OF GRIEVANCE WHETHER SENTENCE SHOULD BE REDUCED

Citation: Wat v R [2017] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 31 March 2017
Judges: Bathurst CJ, Walton J, Price J

Background

The applicant, a 65-year-old Hong Kong resident, pleaded guilty to knowingly taking part in the supply of approximately 218,764 grams of ephedrine, well exceeding the large commercial quantity threshold of 5 kilograms under the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence is life imprisonment, with a standard non-parole period of 15 years.

The offending involved a transnational criminal syndicate that smuggled ephedrine from China concealed inside ceramic garden pots. The applicant established a company and a storage unit in Australia, providing the organisational infrastructure for the operation. His co-offender, Chu, flew in from Hong Kong to oversee the arrival of the consignment. Both left Australia before police executed a search warrant and seized the drugs.

At first instance, the District Court sentenced the applicant to a non-parole period of 10 years and a head sentence of 15 years, after applying a 25 per cent discount for his guilty plea. His co-offender Chu received a non-parole period of 7 years and a head sentence of 10 years. The applicant sought leave to appeal on three grounds.

  • Whether the sentencing judge erred in treating financial gain as a substantial aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in treating involvement in planned and organised criminal activity as a substantial aggravating factor
  • Whether the disparity between the applicant's sentence and his co-offender Chu's sentence gave rise to a justifiable sense of grievance warranting a reduction

Decision

Grounds 1 and 2: Aggravating factors. The Court of Criminal Appeal dismissed the first two grounds. The sentencing judge was entitled to treat both financial reward and involvement in planned and organised criminal activity as substantial aggravating factors. The judge had accepted evidence that the applicant's wife was ill and needed medical treatment, but found that financial gain, not the medical situation, was the primary motivation. The Court found no error in that reasoning or in the judge's approach to the aggravating factors under s 21A(2).

Ground 3: Sentencing disparity. The Court upheld this ground. Acknowledging that the applicant's greater role justified a longer sentence than Chu's, the Court found that the extent of the disparity was not reasonably explained by those differences. The applicant's head sentence was 50 per cent longer than Chu's and his non-parole period exceeded Chu's by approximately 43 per cent. That degree of disparity gave rise to a justifiable sense of grievance.

Price J noted that Chu's sentence appeared lenient, but the Crown had not appealed against it. The Court accepted that the scope for reducing the applicant's sentence was limited, given the objective gravity of the offending and the statutory guideposts. Nevertheless, a moderate reduction was warranted to address the unjustifiable disparity.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed by Norrish QC DCJ on 14 December 2015 is quashed.
  • The applicant is sentenced to a term of imprisonment of 12 years, comprising a non-parole period of 9 years commencing 8 October 2014 and expiring 7 October 2023, with a balance of term of 3 years expiring 7 October 2026.
  • The earliest date the applicant will be eligible for parole is 7 October 2023.

Key Takeaways

  • A sentencing court is entitled to treat both financial gain and involvement in planned and organised criminal activity as substantial aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, even where personal hardship partly explains an offender's motivation.
  • Disparity between co-offenders' sentences does not automatically warrant a reduction; the question is whether the disparity is reasonably explained by differences in the offenders' culpability, role, and circumstances.
  • Where a co-offender's sentence appears lenient but was not challenged by the Crown, an appellate court may still reduce the other offender's sentence to moderate an unjustifiable disparity, though the scope for reduction is constrained by the objective seriousness of the offending and applicable statutory guideposts.
  • In dismissing Grounds 1 and 2, the Court of Criminal Appeal confirmed that a sentencing judge may properly find a primary motivation for offending notwithstanding competing explanations supported by psychological and medical evidence.
  • The Court declined to find special circumstances to justify a greater reduction in the non-parole period, holding that any further reduction would produce a manifestly inadequate sentence given the scale of the drug supply involved.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Cases
- Farkas v R (2014) 243 A Crim R 388; [2014] NSWCCA 141
- Gill v R [2010] NSWCCA 236
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
- Prculovski v R [2010] NSWCCA 274
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Ilbay [2000] NSWCCA 251
- Tatana v R [2006] NSWCCA 398