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Court of Criminal Appeal 18 December 2019

Hung v R

[2019] NSWCCA 303

Drugs
OFFENDER — APPEAL DISMISSED

Citation: Hung v R [2019] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 18 December 2019
Judges: Gleeson JA, Harrison J, Cavanagh J (judgment delivered by Cavanagh J)

Background

The applicant pleaded guilty in the District Court at Parramatta to four counts of supplying not less than the commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences involved large quantities of methylamphetamine, heroin, cocaine, and MDMA stored and packaged at a Sydney safe house in September 2016. Police surveillance and forensic evidence linked the applicant directly to the safe house, including his fingerprints and DNA on drug packaging materials.

The applicant was sentenced alongside a co-offender, Mr Tong, who was identified as the principal in the syndicate. The applicant's role included acting as a primary driver for the co-offender and participating in the packaging of drugs for distribution. Both offenders pleaded guilty and received a 25 per cent discount for the utilitarian value of their pleas, though the co-offender received an additional 5 per cent discount for assistance provided to police under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The applicant received an aggregate sentence of 13 years with a non-parole period of 7 years. He sought leave to appeal on two grounds: that the sentencing judge failed to properly account for his diagnosed mental illness, and that his sentence was unjustifiably disproportionate to that imposed on the co-offender.

  • Whether the sentencing judge erred by failing to make specific findings about how the applicant's mental illness affected his moral culpability, the weight to be given to general deterrence, and the onerousness of custody.
  • Whether the applicant had a justifiable sense of grievance under the parity principle, given differences between himself and the co-offender in role, criminal history, mental health, and subjective circumstances.

Decision

Ground 1: Mental illness. The Court accepted that, where an offender's mental illness contributes to the commission of an offence, a sentencing judge may find diminished moral culpability and grounds for special circumstances, citing DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. However, the Court found that, on a fair reading of the remarks on sentence as a whole, the sentencing judge had in fact taken the applicant's diagnosed major depressive disorder and comorbid anxiety into account. The remarks on sentence referenced the mental illness on multiple occasions, and the Court held that a judge is not required to address every point raised in submissions in explicit terms. Ground 1 was not established.

Ground 2: Parity. The applicant received a lesser sentence than the co-offender and argued the margin was insufficient given his more favourable subjective circumstances, including no prior criminal record and the presence of a mental illness that the co-offender did not share. The Court noted that the apparent difference of only six months was partly illusory: the co-offender's sentence was reduced by an additional 5 per cent discount for police assistance, meaning the underlying disparity before discounts was closer to 12 months. The Court observed that a parity complaint cannot be sustained where a lack of disparity arises from the co-offender attracting a higher discount. Intervening on parity grounds requires a marked and unjustified disparity or an absence of due proportionality, and that threshold was not met here. Ground 2 was also not established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to make explicit, itemised findings on every aspect of an offender's mental illness, provided the remarks on sentence, read fairly as a whole, demonstrate that the condition was taken into account for all relevant purposes.
  • Under the parity principle, an applicant cannot establish a justifiable sense of grievance where a perceived lack of sentencing disparity between co-offenders is explained by the co-offender receiving a higher discount for assistance to police under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Intervention on parity grounds requires more than a difference in subjective circumstances; the disparity must be marked and unjustified, or the sentences must lack due proportionality.
  • Where an offender's mental illness contributed to the offence, a sentencing court may reduce moral culpability and find special circumstances, but that principle does not mandate a lesser sentence in every case where mental illness is present.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that differences in criminal history, mental health diagnosis, and role between co-offenders will not automatically compel a substantially greater sentencing disparity than that imposed by the original court.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23

Cases:
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Van Ryn [2016] NSWCCA 1
- R v Wright (1997) 93 A Crim R 48
- Fenech v R [2018] NSWCCA 160
- Bell v R [2019] NSWCCA 271