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Court of Criminal Appeal 23 August 2023

Wang v R

[2023] NSWCCA 208

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE SERIOUS DRUG SUPPLY OFFENCES OFFENDERS PARITY GROUND UPHELD

Citation: Wang v R [2023] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 23 August 2023
Judge(s): Kirk JA, N Adams J, R A Hulme AJ

Background

The appellant pleaded guilty in the District Court to three serious drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW): one count of supplying an indictable quantity of methylamphetamine (31.64g found at his apartment in October 2014), and two counts of supplying a large commercial quantity of methylamphetamine (approximately 1.5kg supplied between March and April 2015, and almost 2kg supplied on 14 May 2015). Additional offences, including supply of cocaine, dealing with proceeds of crime, and knowingly participating in a criminal group, were taken into account on Form 1 documents.

In June 2017, the District Court sentenced the appellant to an aggregate term of 13 years and 6 months imprisonment with a non-parole period of 10 years. The third count, involving the 14 May 2015 supply, was carried out alongside two co-offenders who were described as the "facilitators" of that supply and who were found to be "in control of the transaction."

The appellant, self-represented before the Court of Criminal Appeal and filing his notice of application over five years after sentencing, raised seven proposed grounds of appeal. The ground that succeeded was a parity complaint: the indicative starting point before reduction for guilty plea on the third count was 16 years for the appellant, compared to 11 years and 12 years for the two co-offenders, despite the co-offenders being found to have exercised greater control over that transaction.

  • Whether the appellant's extension of time to appeal should be granted despite a significant and largely unexplained delay.
  • Whether the sentencing judge erred by assessing the objective seriousness of the third supply offence inconsistently as between the appellant and his co-offenders.
  • Whether there was an unjustifiable sentencing disparity between the appellant and his co-offenders on the third count, given their respective roles in that supply.
  • Whether a court considering a parity ground alongside other grounds of appeal (such as manifest excess) is required to address manifest excess first, or to deal with all grounds regardless of merit.

Decision

Role of the appellant. The appellant argued he was merely "an errand boy" in the May 2015 transaction. The Court rejected this characterisation, noting that senior counsel appearing for him below had explicitly conceded he was not a "mere courier" and was "at the very highest, in the mid-range of the hierarchy." The agreed facts established that the appellant received the methylamphetamine, passed it to an undercover operative, collected the money, and returned the majority of it to his suppliers, earning $10,000 per kilogram. The Court found his role was "critical."

Inconsistent objective seriousness findings. The Court identified an internal inconsistency in the original sentencing remarks: the third offence was assessed as "above midrange" in objective seriousness for the appellant, while the same offence was assessed as "at least midrange" for the co-offenders. Given the co-offenders were found to be the controlling parties in that transaction, no satisfactory basis for this differential assessment was apparent.

Unjustifiable disparity. Applying Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, the Court held the 16-year starting point for the appellant on count three was unjustifiably higher than the 11 and 12-year starting points for the co-offenders. The Court rejected the suggestion that the disparity was justified by the appellant also being sentenced for earlier supply offences or by the Form 1 matters, as those factors fell to be addressed elsewhere in the sentencing exercise.

Order in which grounds are addressed. The Court confirmed there is no rule of practice requiring all grounds to be considered when a parity ground has clearly succeeded and the remaining grounds lack merit. N Adams J added a broader observation: the order of consideration may appropriately depend on the relative strength, number, and complexity of each ground. There was some divergence among the judges on whether addressing manifest excess before parity is "almost universally followed" practice, with N Adams J respectfully disagreeing with that characterisation as stated in the earlier decision of Ritchie v R [2023] NSWCCA 153.

Orders Made

  • Extension of time for commencing proceedings granted to 28 September 2022.
  • Leave to appeal granted; appeal allowed.
  • Sentence imposed in the District Court on 23 June 2017 quashed.
  • In lieu, the appellant sentenced to an aggregate term of imprisonment of 11 years with a non-parole period of 8 years and 3 months, dating from 14 May 2015.
  • The appellant became eligible for release on parole upon expiry of the non-parole period on 13 August 2023.

Key Takeaways

  • An unjustifiable sentencing disparity can be established even where the co-offenders with lower starting points were found to have exercised greater control over the relevant transaction, and where the appellant's own role was found to be significant.
  • Inconsistent findings about objective seriousness across co-sentenced offenders, without adequate explanation, can ground a successful parity appeal.
  • The Court of Criminal Appeal confirmed there is no procedural rule requiring it to address all grounds of appeal, including those lacking merit, once a parity ground has clearly succeeded.
  • N Adams J's reasons add to an emerging debate about whether manifest excess must always be considered before parity: the Court left open that the order of consideration may depend on the relative strength, number, and complexity of the grounds raised.
  • A very late application for an extension of time may still be granted where the merits clearly warrant resentencing, even if the delay is only partially explained.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes Act 1900 (NSW), ss 93T(1A) and 193B(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Ritchie v R [2023] NSWCCA 153
- Rodgers v R [2018] NSWCCA 47
- Dungay v R [2020] NSWCCA 209
- Zhang v R [2018] NSWCCA 82
- Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Kristensen v R [2018] NSWCCA 189
- Ke v R [2021] NSWCCA 177
- Parkinson v R [2021] NSWCCA 98