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Court of Criminal Appeal 27 July 2018

R v Yiu; R v Yau

[2018] NSWCCA 155

Drugs
CRIMINAL LAW SENTENCE CROWN APPEAL DRUG OFFENCE MANIFEST INADEQUACY PLEA OF GUILTY BY EACH RESPONDENT

Citation: R v Yiu; R v Yau [2018] NSWCCA 155
Court: Court of Criminal Appeal, New South Wales
Date: 27 July 2018
Judges: Meagher JA at [1]; Rothman J at [2]; Garling J at [138]

Background

The Crown appealed sentences imposed by the District Court of New South Wales on two respondents, Cheuk Hang Yiu and Mung Yi Yau, following their guilty pleas to knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine (999.1 grams, at 78.5% purity) under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is life imprisonment, with a standard non-parole period of 15 years.

Both respondents had played roles in a drug supply operation that was uncovered through an undercover police operative. The appellant directed the operative to collect the second respondent, who in turn coordinated the transaction with another co-offender who physically delivered the drugs. Both respondents received a 25% discount on their sentences for early guilty pleas.

The sentencing judge imposed identical sentences on each respondent: a head sentence of 3 years' imprisonment with a non-parole period of 2 years, having classified the objective seriousness of their offending as being at "the lower end." A co-offender who played a more senior role, Mr Piao, received a head sentence of 9 years with a 6-year non-parole period.

  • Whether the sentences imposed on each respondent were manifestly inadequate.
  • Whether the sentencing judge incorrectly classified the objective seriousness of the offending.
  • Whether identifiable error in the sentencing exercise explained the alleged manifest inadequacy.
  • Whether the Court of Criminal Appeal should exercise its residual discretion to intervene and resentence the respondents.

Decision

The Court of Criminal Appeal found that the sentencing judge had incorrectly characterised the objective seriousness of each respondent's offending. Rothman J, with whom Meagher JA and Garling J agreed, concluded that the offending fell below the mid-range of seriousness but was not at the lowest level. This misclassification constituted an identifiable error that helped explain why the resulting sentences were manifestly inadequate.

In resentencing the respondents, the Court took into account the significant subjective circumstances of both. Each respondent had no prior criminal history, was a methamphetamine addict, and had demonstrated genuine prospects for rehabilitation. The Form 1 offences taken into account for each respondent, including participation in a criminal group, indicated ongoing involvement beyond the single transaction.

The Court found special circumstances warranting a departure from the statutory non-parole period ratio in both cases, given the respondents' dependence and the need for an extended period of supervision and treatment in the community following release. Having applied the 25% early plea discount and weighed these factors, the Court was satisfied that the revised sentences were appropriate and did not create any unwarranted disparity with co-offenders.

The Court also addressed the residual discretion available in Crown appeals, noting that it is for the Crown to demonstrate that the discretion should not be exercised in the respondent's favour. The Court was satisfied that the Crown had done so in these circumstances.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an incorrect classification of objective seriousness by a sentencing judge can constitute an identifiable error supporting a finding of manifest inadequacy on Crown appeal.
  • A sentence may be manifestly inadequate even where significant subjective circumstances exist, if those circumstances were reached by applying an incorrect baseline assessment of objective seriousness.
  • Where a drug supply offence carries a maximum of life imprisonment and a standard non-parole period of 15 years, the sentencing court must carefully calibrate the offender's position within the range, even at the lower end, against those significant guideposts.
  • Special circumstances justifying a departure from the standard non-parole period ratio were found to exist where offenders suffered from methamphetamine dependence requiring extended supervision and treatment in the community after release.
  • In Crown appeals, the onus rests on the prosecution to establish that the court's residual discretion not to intervene, even where error is found, should not be exercised in the respondent's favour.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), ss 93T(1), 95T(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Appeal and Review) Act 2001 (Cth)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- Baines v R [2016] NSWCCA 132
- Baxter v R [2007] NSWCCA 237
- Parente v R [2017] NSWCCA 284
- R v AB [2018] NSWCCA 113
- Koh v R [2013] NSWCCA 287
- Lam v R [2014] NSWCCA 50
- Hill v R [2012] NSWCCA 265
- R v GWM [2012] NSWCCA 240
- R v Medd (a Pseudonym) [2016] NSWCCA 216
- Mulato v R [2006] NSWCCA 282
- Frigiani v R [2007] NSWCCA 81
- Porter v R [2008] NSWCCA 145