Citation: Kwok v R [2018] NSWCCA 200
Court: Court of Criminal Appeal, NSW
Date: 21 September 2018
Judge(s): Ward JA, Bellew J, Beech-Jones J
Background
The applicant pleaded guilty in the District Court to two offences under the Drug Misuse and Trafficking Act 1985 (NSW): manufacturing methamphetamine in a large commercial quantity (between 5 and 17 June 2013), and supplying methamphetamine in a large commercial quantity (15.94 kg, on 17 June 2013). Both offences carry a maximum of life imprisonment and a standard non-parole period of 15 years.
The applicant had travelled to Australia from Hong Kong and, together with a co-offender, operated a clandestine laboratory in Beverly Hills, Sydney. He was arrested in a taxi on 17 June 2013 in possession of several kilograms of methamphetamine and multiple falsely subscribed mobile phones. Three co-offenders, Wan, Choy, and Heng, were sentenced separately.
The District Court imposed 22 years imprisonment for the manufacturing count and 15 years for the supply count, with a three-year partial accumulation, producing a total sentence of 25 years with a non-parole period of 17 years. The applicant sought leave to appeal on the grounds that the sentences should have been fully concurrent, and that the sentence was disproportionate compared with those of his co-offenders.
Legal Issues
- Whether the sentencing judge erred by ordering partial accumulation of the two sentences, rather than making them wholly concurrent, on the basis that one offence comprehended the other.
- Whether the applicant had a justifiable sense of grievance compared with the sentence imposed on co-offender Wan, given findings about their respective roles.
- Whether the applicant had a justifiable sense of grievance compared with the sentence imposed on co-offender Heng, where Heng's sentence had been influenced by an additional offence taken into account under a Form 1 (or its Commonwealth equivalent under s 16BA of the Crimes Act 1914 (Cth)).
Decision
Accumulation. The Court rejected the argument that the manufacturing and supply offences were so interrelated that concurrent sentences were required. While the drug that was supplied had been manufactured during count 1, the two offences were found to be separate and distinct. The manufacturing occurred over approximately 12 days; the supply was a discrete act on the final day. Partial accumulation was within the proper exercise of the sentencing discretion, and no error was established.
Parity with Wan. The applicant contended he was treated more harshly than Wan without justification. The Court found the sentencing judge's conclusion that the applicant played a greater role than Wan was well supported by the evidence. The applicant had direct contact with the "big boss," made arrangements for supply, and arrived from Hong Kong specifically to participate in the operation. The disparity in sentences was therefore explained by the difference in culpability, and no justifiable sense of grievance arose.
Parity with Heng. The applicant sought to compare his sentence with Heng's by attempting to "unravel" Heng's sentence to isolate what portion was attributable to the principal offence and what portion reflected an additional offence taken into account (equivalent to a Form 1 matter). The Court held this approach was impermissible. The sentencing court's task is to sentence only for the principal offence; it does not determine a separate sentence for the additional offence and then apply a discount. Any attempt to reverse-engineer a sentence to isolate those components is contrary to established principle. The parity argument with Heng therefore failed.
The ground of manifest excess was abandoned at the hearing.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Partial accumulation of sentences for manufacturing and supplying the same prohibited drug is not automatically erroneous where the two offences are temporally and factually distinct, even if the drug supplied was the drug manufactured.
- A justifiable sense of grievance in a parity claim requires that any disparity between sentences be unexplained by differences in the offenders' roles and culpability. Where the sentencing judge's findings of greater culpability are supported by evidence, a harsher sentence for one co-offender does not constitute appealable error.
- Under both NSW and Commonwealth sentencing regimes, the sentencing court sentences only for the principal offence when a further offence is taken into account on a Form 1 (or under s 16BA of the Crimes Act 1914 (Cth)). No separate sentence is determined for the additional offence, and no "discount" calculation is performed.
- Attempting to estimate what portion of a co-offender's sentence was attributable to a Form 1 offence, for the purpose of a parity argument, is contrary to principle and was rejected by the Court of Criminal Appeal as an impermissible mode of analysis.
- In dismissing all grounds of appeal, the Court confirmed that the sentencing judge's approach to accumulation, role differentiation, and Form 1 offences was within the proper exercise of the sentencing discretion.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Crimes Act 1914 (Cth), s 16BA
- Criminal Code 1995 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; (2015) 254 A Crim R 244
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Kerr v R [2016] NSWCCA 218
- Lowe v R (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
- R v Lamella [2014] NSWCCA 122
- Wan v R [2017] NSWCCA 261