Citation: Wat v R [2017] NSWCCA 62
Court: Court of Criminal Appeal
Date: 31 March 2017
Judge(s): Bathurst CJ, Walton J, Price J (Price J delivering the leading judgment)
Background
The applicant, a 65-year-old Hong Kong resident with no prior criminal history, pleaded guilty in the District Court to knowingly taking part in the supply of 218,764.5 grams of ephedrine, far exceeding the large commercial quantity threshold of 5 kilograms under the Drug Misuse and Trafficking Act 1985 (NSW). He had been recruited by a transnational criminal syndicate, for which he registered an Australian company, transferred funds to China, and helped receive and process a shipment of ephedrine concealed in ceramic garden pots. His co-offender, Chu, arrived in Australia later and took charge of ensuring the delivery of the drugs.
The District Court sentenced the applicant to 15 years imprisonment with a non-parole period of 10 years. Chu was later sentenced by a different judge to 10 years imprisonment with a non-parole period of 7 years. The applicant sought leave to appeal on the grounds that financial reward and planning were wrongly treated as substantial aggravating factors, and that the disparity between his sentence and Chu's gave rise to a justifiable sense of grievance.
Legal Issues
- Whether the sentencing judge erred in treating financial reward and planned and organised criminal activity as substantial aggravating factors, given that those features are inherent in offences of this kind
- Whether the disparity between the applicant's sentence and Chu's sentence gave rise to a justifiable sense of grievance warranting appellate intervention
Decision
Grounds 1 and 2: Financial reward and planning as substantial aggravating factors
The Court confirmed that for large commercial drug supply offences, a degree of planning and financial gain will almost inevitably be present, and those features are not automatically treated as aggravating factors. They become aggravating only where the planning or financial gain is more than would be expected at the lowest level of such offending (at [44]).
In this case, the planning was elaborate: it involved multiple international trips, the registration of an Australian company, the transfer of US$35,000 to China, the concealment of ephedrine in ceramic bowls, and the renting of storage facilities. The applicant was to receive AU$50,000 for his role, compared to Chu's AU$10,000. The Court found this level of planning and financial gain went well beyond the baseline for the offence type, and the judge's characterisation of both as substantial aggravating factors was not an error (at [46]-[49]).
Ground 3: Parity with co-offender's sentence
The Court accepted that a marked disparity giving rise to a justifiable sense of grievance exists before appellate intervention is warranted, and that mere disparity is insufficient. The applicant's head sentence was 50 per cent more than Chu's, and the non-parole period exceeded Chu's by 43 per cent (at [72]).
The Court acknowledged that the applicant's role was more extensive than Chu's: he established the entire infrastructure before Chu arrived, and his financial reward was five times greater than Chu's. These differences justified a longer sentence, but did not reasonably explain the extent of the disparity (at [71]-[72]). Price J noted that Chu's sentence appeared lenient, but the Crown had not appealed its adequacy. Given the objective gravity of the offending, the scope for reduction was limited, and the Court re-sentenced the applicant to 12 years imprisonment with a non-parole period of 9 years, declining to find special circumstances because any further reduction would produce a manifestly inadequate sentence (at [72]-[73]).
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 12 years imprisonment, consisting of 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 is eligible for parole is 7 October 2023
Key Takeaways
- For large commercial drug supply offences under the Drug Misuse and Trafficking Act 1985, planning and financial gain are inherent features of the offending class and only become substantial aggravating factors where they exceed what would be expected at the lowest level of that type of offence (at [44]).
- The Court of Criminal Appeal confirmed that parity review requires more than mere disparity: the applicant must demonstrate a marked disparity that a reasonable person would regard as producing a justifiable sense of grievance (at [65]).
- Where a sentencing court finds that a co-offender's sentence was lenient but was not the subject of a Crown appeal, that leniency still places a ceiling on the extent to which the disparity can be left unremedied, even though the scope for reduction may be limited by the gravity of the primary offending (at [72]).
- Differences in role, infrastructure contribution, and financial reward between co-offenders can justify different sentences, but the extent of any disparity must bear a rational relationship to those differences (at [71]-[72]).
- In re-sentencing after a successful parity ground, the Court declined to find special circumstances where doing so would have produced a manifestly inadequate outcome given the seriousness of the underlying offending (at [73]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999, s 21A(2)
- Drug Misuse and Trafficking Act 1985, s 25(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 llbay [2000] NSWCCA 251
- Tatana v R [2006] NSWCCA 398