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16
Court of Criminal Appeal 28 March 2018

Yeung v R

[2018] NSWCCA 52

Drugs
CRIME SENTENCING RANGE OFFENCE SENTENCING ACCUMULATION SENTENCING

Citation: Yeung v R [2018] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 28 March 2018
Judge(s): Hoeben CJ at CL, Simpson JA, McCallum J (judgment delivered by McCallum J)

Background

The appellant pleaded guilty in the District Court to knowingly taking part in the supply of a commercial quantity of methylamphetamine (282 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A further offence involving 279.29 grams of the same drug was taken into account on a Form 1. The offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

The appellant was one of five co-offenders sentenced together, each charged with different offences arising from a police investigation into a Sydney-based drug supply syndicate. The appellant's role was characterised in the agreed facts as acting, in part, as a prohibited drug distributor who could source commercial quantities of methylamphetamine for another syndicate member.

The District Court sentenced the appellant to a total term of 5 years and 6 months, with a non-parole period of 3 years and 9 months, after applying a 25 per cent discount for the utilitarian value of an early guilty plea. The appellant sought leave to appeal on four grounds: the judge's assessment of objective seriousness, accumulation, special circumstances, and parity with co-offenders.

  • Whether the sentencing judge erred by failing to make a proper determination of where the offence stood in terms of objective criminality.
  • Whether s 55(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) creates a presumption in favour of concurrency where an offender is already serving a sentence at the time a new sentence is imposed.
  • Whether a finding of special circumstances was properly reflected in the structure of the sentence.
  • Whether the appellant had a justifiable sense of grievance arising from disparity between his sentence and those imposed on co-offenders.

Decision

Ground 1: Objective seriousness. McCallum J clarified the task a sentencing judge must actually perform. Following Muldrock v The Queen (2011) 244 CLR 120, a sentencing judge is not required to place an offence at a specific point along a hypothetical range of objective seriousness, using phrases such as "below mid-range." What is required is an overall assessment of the relevant factors and a value judgment about the appropriate sentence. Reading the sentencing judgment fairly as a whole, McCallum J was satisfied that the judge had performed that assessment, even if the reasons did not expressly articulate the objective seriousness in those terms. No error was established.

Ground 2: Accumulation. The appellant argued that s 55(1) of the Crimes (Sentencing Procedure) Act 1999 creates a presumption in favour of concurrency. The Court rejected this. McCallum J, consistent with the Court's earlier decision in R v Van Ryn [2016] NSWCCA 1, held that s 55(1) creates no such presumption; the section merely sets out the default position where a court does not otherwise specify whether sentences are to be served concurrently or consecutively. The sentencing judge had considered the question of accumulation and was not shown to have erred.

Ground 3: Special circumstances. The appellant contended that a finding of special circumstances was not properly reflected in the structure of the sentence. McCallum J considered the sentence structure and was not persuaded that the judge had failed to give effect to the finding. This ground was also rejected.

Ground 4: Parity. The appellant argued his sentence was disproportionately harsh compared to those of his co-offenders. The Court found that any apparent disparity was explicable by material differences between cases. Compared to co-offender Ting, the appellant played a more significant and active role in the syndicate. Compared to Field and Sibbritt, the different structure of the sentences (the appellant was sentenced on one count with the second taken into account on a Form 1, whereas Field and Sibbritt received aggregate sentences) meant no true comparison of disparity could be drawn. The appellant had no legitimate sense of grievance.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Following Muldrock, a sentencing court is not required to locate an offence at a specific point on a hypothetical scale of objective seriousness. The obligation is to assess objective seriousness as one factor in an overall sentencing exercise, not to characterise it using formulaic labels such as "below mid-range."
  • Section 55(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not create a presumption in favour of concurrent sentences where an offender is already subject to a sentence. It operates only as a default rule in the absence of any direction by the court.
  • A parity challenge requires a genuine comparison of like with like. Where co-offenders face different charges and differently structured sentences, apparent disparities may not reflect any error by the sentencing court.
  • No error arises simply because a sentencing judgment does not explicitly state a conclusion about objective seriousness, provided the judgment as a whole reveals that the assessment was made.
  • In dismissing all four grounds, the Court of Criminal Appeal reaffirmed that sentencing judges retain considerable discretion in structuring sentences, and appellate intervention requires demonstrated error rather than a preference for a different outcome.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 55(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24(2), 25(2), 25A(1)

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Lawson v R [2012] NSWCCA 56
- R v Van Ryn [2016] NSWCCA 1
- Badans v R [2012] NSWCCA 97
- Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58
- R v Cage [2006] NSWCCA 304
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131