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Court of Criminal Appeal 4 May 2018

Zhang v R

[2018] NSWCCA 82

Drugs
CRIMINAL LAW SENTENCE APPEAL

Citation: Zhang v R [2018] NSWCCA 82
Court: Court of Criminal Appeal, NSW
Date: 4 May 2018
Judges: Hoeben CJ at CL (with Fullerton J and Davies J agreeing)

Background

The appellant pleaded guilty in the Sydney District Court to knowingly taking part in the supply of a large commercial quantity of methylamphetamine (just under 2 kilograms) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A further offence of knowingly participating in a criminal group and directing activities was taken into account on a Form 1. The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The sentencing judge imposed a total sentence with a non-parole period of 6 years and 9 months. The appellant had a prior drug supply conviction, had been released on parole only six weeks before the offence, and his parole was revoked following his arrest. The sentencing judge found the appellant's role was significant and assessed the objective seriousness of the offending as at least mid-range.

The appellant sought leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly excessive and that the sentencing judge failed to properly account for the early guilty plea.

  • Whether the sentencing judge erred by failing to identify and apply a specific discount for the early guilty plea, either at all or as a factor in mitigation, evidence of contrition, or an aid to the administration of justice.
  • Whether, in the absence of explicit reasons on the discount, the Court should provide an explanation under s 11 of the Criminal Appeal Act 1912 or allow the appeal on the basis of the error.
  • Whether the overall sentence was manifestly excessive.

Decision

On the first ground, the Court acknowledged that the sentencing judge's remarks on sentence did not explicitly state what percentage discount, if any, had been applied for the early guilty plea. Under Kentwell v The Queen (2014) 252 CLR 601 and related NSW authority, sentencing judges are generally required to identify the discount given for a guilty plea. The absence of explicit reasons can, in appropriate circumstances, give rise to a ground of appeal.

However, Hoeben CJ at CL found there were sufficient indicia to establish that the sentencing judge did in fact apply a discount. Several factors were identified: multiple references to the early plea during sentencing proceedings (most recently four days before judgment); an explicit reference to the plea in the sentence judgment itself; and the fact that this was the fourth of four sentences handed down on the same day for the appellant and three co-offenders, with each of the three earlier judgments expressly referring to a discount for an early plea. Mathematical analysis of the sentence (so-called "reverse engineering") also supported the inference that a discount had been applied. Together, these indicia meant there was no "real possibility" the judge had failed to consider and apply an appropriate discount.

On the second ground, the Court accepted the sentencing judge was entitled to reject the appellant's claims of genuine contrition and remorse. The appellant did not give evidence at sentencing, and his statements of remorse reached the court only through hearsay in reports from a pre-sentence reporter and psychologist. The Court noted inconsistencies between what the appellant told each of those sources, providing a sound basis for the sentencing judge to be "very circumspect" about those claims. Consistent with established authority, sentencing judges may treat third-party reports of remorse with considerable scepticism where the offender does not give evidence.

Neither ground of appeal was made out. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where a sentencing judge does not explicitly state the discount applied for an early guilty plea, an appellate court will look at the totality of the sentencing record for indicia that a discount was in fact applied, including references to the plea during proceedings, express mention of the plea in the judgment, consistency with co-offender judgments handed down on the same occasion, and mathematical analysis of the sentence.
  • Sufficient indicia of a plea discount can defeat a ground of appeal even where explicit reasoning on the quantum of the discount is absent from the judgment.
  • Under the principles affirmed in R v Qutami, Butters v R, and related authorities, sentencing courts are entitled to treat third-party reports of an offender's remorse with scepticism, particularly where the offender declines to give evidence at sentence.
  • Inconsistencies between what an offender tells a pre-sentence reporter and what they tell a psychologist can provide a legitimate basis for a sentencing judge to discount claims of genuine contrition.
  • Committing a serious drug offence within six weeks of release on parole remains a significant aggravating factor, capable of justifying a sentencing judge's refusal to make positive findings about future rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93T(1A)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 11
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Butters v R [2010] NSWCCA 1
- Edwards v R [2017] NSWCCA 160
- Imbornone v R [2017] NSWCCA 144
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Lee v R [2016] NSWCCA 146
- Pfitzner v R [2010] NSWCCA 314
- R v DF [2005] NSWCCA 259
- R v Harrison [2006] NSWCCA 185
- R v Henare [2005] NSWCCA 366
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Sloane [2001] NSWCCA 421; 126 A Crim R 188
- Vos v Regina [2006] NSWCCA 234
- Woodward v The Queen [2014] NSWCCA 205